Public Bill Committee

[Sir John Butterfill in the Chair]

Clause 27

When development consent is required

Bob Neill: I beg to move amendment No. 255, in clause 27, page 13, line 24, leave out ‘is required’ and insert ‘may be applied for’.

John Butterfill: With this it will be convenient to discuss the following amendments: No. 256, in clause 27, page 13, line 30, leave out ‘is required’ and insert ‘may be applied for’.
No. 257, in clause 29, page 14, line 30, leave out ‘required’ and insert ‘obtained’.
No. 258, in clause 29, page 15, line 8, leave out ‘required’ and insert ‘obtained’.
No. 259, in clause 29, page 15, line 9, leave out ‘may’ and insert ‘is required to’.

Bob Neill: It is a pleasure to see you back in the Chair, Sir John. We thought that we would change the shift on our Front Bench for the afternoon as well.
The amendment looks at the means by which applications for development consent can be dealt with. We are moving on to part 4, which deals with the question of the requirement for development consent. This group of amendments addresses an issue that the Government have still not got right: the existence of parallel regimes. We discussed the matter earlier today, but we are still not convinced that the Government understand the potential difficulty.
The amendment would change the wording from saying that consent “is required” under the infrastructure planning commission procedure, to saying that it “may be applied for”. The reason for tabling it is to tease out from the Government further comment on how they see the two regimes sitting together. Amendments Nos. 257 to 259 are consequential amendments and I need not go into too much detail. Essentially, they follow on from those changes in subsequent parts of the Bill.
If there are going to be two regimes, the Government should either rule national infrastructure projects out completely or there should be a measure of flexibility for the applicant. Which is it to be? If we take the route that we have suggested and use the Bill to separate policy statements from site-specific elements, the logic suggests that everything should go through a single consent regime. The reasons for that have already been rehearsed and I will not repeat them. We are in favour of that, but we seem to be in the position that duplicate regimes will exist. Do I take it that anything that falls within the category of nationally significant infrastructure projects will automatically be dealt with under the single consent regime and also by the IPC? Clarity on that is important for people. Some of the evidence that we heard expressed concern about the two regimes. We would like the Government to spell it out. The amendment is not intended to wreck, but to find a more constructive way forward.
I hope that without trespassing too much, Sir John, I may mention amendment No. 9, which is in the next group, because it is part of the overall picture. I will try to keep in order by saying that we will find that a subsequent amendment also relates to our alternative approach. First, the scheme will work best if there is a clear separation between national policy and site-specific elements. Secondly, that could be achieved without the need for the large and cumbersome bureaucracy of the IPC. My hon. Friend the Member for Beckenham has already rehearsed the reasons for that. It could be done by adapting the Planning Inspectorate and the role of the High Court in dealing with issues of fact and the construction of statutory matters. Those are well-established routes and that separation of areas could be used to cut down repetition and the lengthy cross-examination of inquiries. We will return to that matter in more detail later.
The amendments are not complex, but I would like to hear exactly where the Ministers are going with regard to single consent or otherwise. If two regimes are to be in existence, the temptation will be for someone to argue the toss as to whether they are caught by the national infrastructure regime, or whether they should make an application under the existing rules.
I see the point that it will, generally, be in the applicant’s interest, if he has multiple applications, to go under the national infrastructure regime. But one can think of circumstances in which the project—we will return to the definition of that later— might simply be one discrete piece of development that would require only one application. In that regard, looking at some of the other elements of fees and other matters that we will come on to later, there may be circumstances in which there is a temptation for the applicant to say, “Actually, I would rather go under the old route”. That may seem unlikely, but it is possible. We would like what is in and what is out of the regime to be clear, and I hope that the Minister can help us on that.

Jim Fitzpatrick: It is a pleasure to see you back in the Chair this afternoon, Sir John. Allow me to add my welcome to your return. I have not had the opportunity to welcome you to presiding at all so far in Committee, and it is nice to see you back.
I also welcome the hon. Member for Bromley and Chislehurst to his place. A West Ham double act means that perhaps we can get back on to some football anecdotes, and get away from some of the Scottish questions, although I am not sure that that will be wholly achievable.
I would ask the Committee, with the greatest respect to the hon. Gentleman, to reject the amendments. They remove an obligation on promoters of nationally significant infrastructure projects to seek developing consent under the new single consent regime. Instead, promoters would be given the opportunity to seek consent for their project, either under the single consent regime or under any of the existing regimes. That would have the effect of substantially reducing the benefits of the new single consent regime, as well as potentially confusing both promoters and the wider public as to the steps that must be gone through in order to proceed with an application.
Were the amendments accepted, the result would be that promoters of nationally significant infrastructure projects could continue to apply under the current multiplicity of consent regimes, thereby providing none of the benefits of the single consent regime to promoters and the public. Such applications would not go through the procedure set out in the Bill, which is a substantial improvement on the current planning system, particularly, as we have discussed on a number of occasions, at the pre-application and examination stages. The legal test for deciding such applications would be that set out in the consent regime chosen. As a result, the primary consideration for such applications would not necessarily be Government policy in relation to the particular infrastructure, as set out in the form of a policy statement that had been subject to parliamentary scrutiny.
The approach adopted in the Bill is better. Infrastructure projects of national significance should be determined through a national planning body, and through a single application for order-granting development consent, rather than through a handful of applications to different bodies for different partial consents. Decisions on nationally significant infrastructure projects should be made in accordance with appropriate national policy statements that have been subject to thorough consultation, unless there are very good reasons not to do so. Similarly, we believe that applications for NSIPs would benefit from the pre-application requirements that we have set out in the single consent regime. The benefits of those will be lost if promoters can choose to avoid them by going down an alternative route.
To conclude, the hon. Member for Bromley and Chislehurst asked whether the Government should rule out NSIPs from existing regimes; that is exactly what the Bill does. Clause 29 prevents any existing regime requirements from being required for NSIPs. No order on a nationally significant infrastructure project can be made under existing regimes either, with the exception of Welsh offshore wind farms, which we discussed this morning. If a project is an NSIP, it must go through the single consent regime. On that basis, I recommend that the Committee reject the amendment, if the hon. Gentleman insists on pressing it to a vote.

Bob Neill: I am grateful to the Minister. I will not press the amendment to a vote, but I hope that he will make clear on Report in precisely what circumstances, if any, it is envisaged that leaving the existing regime in place will achieve something. If clause 29 has the desired effect, are we clear that it is set out unequivocally so that no one will be tempted to go down that route?

Jim Fitzpatrick: We are leaving the existing regime in place because there will be applications for planning permission that will not be NSIPs and therefore the existing legislation will be required.

Bob Neill: I appreciate that part, but I was concerned that we should all be satisfied that clause 29 avoids any ambiguity in that regard.

Jacqui Lait: I still think that there is one area that we need to look at. The legislation that was set up for that is now quite elderly and it would therefore be logical and in the interests of better regulation if the Government were to move the remainder of those bits of legislation into the planning system under the Town and Country Planning Acts, rather than having separate Acts under the control of what was the Department of Trade and Industry.

Bob Neill: My hon. Friend makes an interesting point and, in the interests of co-operation and clarity, I will endeavour to speak sufficiently slowly to enable those advising the Minister to get the note to him, as I am sure that he will want to help us in that regard. The issue of clarity is important and I hope that we will be able to deal with it adequately.
The Minister feels that that is enough. I am grateful to him and have given him that chance, but if we are unhappy we will return to the matter on Report. At this stage, however, perhaps we will regard what he and I have said as the same outcome as Saturday’s Manchester City game, 1-1, and I will withdraw the amendment; and I apologise, Sir John, for the Bournemouth and Southend game. I beg to ask leave to withdraw the amendment.

John Butterfill: That is quite enough football references from the Committee for one afternoon.

Amendment, by leave, withdrawn.

Jim Fitzpatrick: I beg to move amendment No. 340, in clause 27, page 13, line 27, leave out subsection (2).

John Butterfill: With this it will be convenient to discuss the following: Amendment No. 9, in clause 27, page 13, line 32, leave out ‘Commission’ and insert ‘High Court’.
Amendment No. 164, in clause 27, page 13, line 32, leave out ‘Commission’ and insert
‘Secretary of State on the advice of the Commission.
‘(3) The Secretary of State must take a decision under subsection (2) within 28 days of receiving the Commission’s advice.
(4) Nothing in this section shall compel the Secretary of State to comply with the Commission’s advice.’.
Amendment No. 10, in clause 32, page 16, line 25, at end insert—
‘(2A) An order granting development consent may also be issued by the High Court consequent on a decision under section 27(2).’.
Government amendments Nos. 360 and 361.

Jim Fitzpatrick: I ask the Committee to reject amendments Nos. 9, 164 and 10 and adopt Government amendments Nos. 340, 360 and 361. The Bill currently provides that when there is doubt as to whether a project requires development consent, the commission will decide the question. The amendments tabled by Opposition Members would only be relevant in a case in which a promoter submits an application for a project whose capacity is closer to the threshold set out in clauses 13 to 26.
The current clause would allow the IPC to decide whether the proposed development meets the thresholds to be constituted a nationally significant infrastructure project. We agree a mechanism for determining whether a project meets the threshold of being an NSIP is necessary, and believe that the IPC will be best placed to analyse the proposals set out by a promoter and to decide whether the project falls within the specified thresholds. We take that view because of the technical expertise that will be available to it and because it will handle such applications regularly.
The question of whether a proposed development meets the thresholds in order to be a nationally significant infrastructure project is primarily a matter of fact. As such, we do not believe that the High Court should be involved at that stage. There will be a right of recourse to the High Court at the appropriate stage of proceedings as set out in clause 104. Amendment No. 10 provides that the High Court itself be able to issue an order granting development consent, and we do not consider that to be appropriate either.
Notwithstanding what I have said, the Government are not content with clause 27 as it stands. We believe that decisions on whether an application requires development consent should take place earlier in the process. Leaving those questions until they are raised could lead to both considerable uncertainty for promoters and objectors and potentially nugatory work. Instead, the Government propose an amendment to clause 49 to allow the IPC to take those decisions earlier in the preparation of an application. Amendment No. 360 provides that when the commission receives an application purporting to be for an order granting development consent, it may only accept the application if it concludes within 28 days that development consent is required for all or some of the development contained in the application.
During that period the commission will need to consider whether, for example, the proposed development meets the threshold set out in relation to NSIPs. It would check, along with other matters, that the application complies with the rules regarding the content and form of an application and the standards set out in clause 32(5), and that the applicant has complied with the pre-application procedures. As a result, clause 27(2) is no longer needed; amendment No. 340 therefore deletes the subsection. On that basis, I recommend that the Committee reject the Opposition amendments. I commend to the Committee the amendments tabled by my hon. Friend the Minister for Local Government.

Bob Neill: Amendments Nos. 9 and 10 were primarily tabled as part of our overall scheme for an alternative that would use the Planning Inspectorate and the High Court as the means, rather than having to create the IPC. I need not repeat that point. I appreciate that the votes have not been with us so far on that, but the point is made for consistency. The Ministers know that our concerns about the principle remain, and that will be referred to in due course.
Another issue of concern, particularly in relation to amendment No. 9, is whether it will be practical and appropriate for the IPC to act to some degree as judge and jury under those circumstances. It may be that expertise can be made available—that comes back to the point made earlier about the importance of a proper range of expertise within the IPC, so that the issues can be dealt with. I appreciate that sometimes these will be questions of fact, but to use the jargon, they are often mixed questions of fact and law, which have historically been decided through the courts. It is therefore important that there is adequate legal membership of the commission, as well as adequate representation of other professionals, to ensure that there is a legal input. Otherwise, we might have to hire some expensive lawyers, the very thought of which will make the Government blanch, to ensure that the decision is legally watertight.
The Minister’s observations about his own changes to the Bill, and his bringing forward those issues, are welcome. I am glad that the discussion until now has managed to highlight those issues. Clearly, it is right, in the interests of speed and efficiency, that as much as possible is dealt with at the pre-application and earlier stage, so that the issues in dispute are narrowed down for any hearing, whatever form that takes, which we will debate later. I think that that is common ground among all members of the Committee and virtually everybody who has expressed an interest in the Bill, whether professional or lay. We understand that clause 10 was put in place to try to save time under such circumstances, but given the Minister’s comments and having flagged up the issue, we are content at this stage to withdraw our amendments.

Daniel Rogerson: I join other hon. Members in welcoming you back to the Chair, Sir John. I rise to speak to amendment No. 164, which I have tabled. Along similar lines to the hon. Member for Bromley and Chislehurst, I had concerns about the commission deciding whether or not it should consider an application, and felt that it might be more appropriate for that decision to be a matter for the Secretary of State. However, the Government amendment that deletes that provision is an alternative and it reassures us that the Bill is watertight enough and that these matters will fall within the scope of the Bill, so there will not need to be a decision by the commission. On that basis, I am happy to withdraw the amendment.

John Butterfill: May I just say to the hon. Members that it is not necessary for them to withdraw their amendments as they have not yet been called? They have been debated along with that which is presently being discussed. When we come to their amendments, the hon. Members may choose not to move them, so it is not necessary to withdraw them at this stage.

Amendment agreed to.

Clause 27, as amended, ordered to stand part of the Bill.

Clause 28

Meaning of “development”

Jim Fitzpatrick: I beg to move amendment No. 143, in clause 28, page 14, line 1, after ‘use’ insert ‘a cavity or’.

John Butterfill: With this it will be convenient to discuss Government amendment No. 144

Jim Fitzpatrick: Clause 28 provides a definition of which type of works constitute “development” for the purposes of the Bill, and consequently whether development consent is required before the works are undertaken. In general, the meaning of development in the Bill is the same as is currently the case in the Town and Country Planning Act 1990. Subsection (2) adds two further categories of works which should be considered development: the conversion of a power station’s fuel source and starting to use underground strata for the purposes of gas storage. Amendments Nos. 143 and 144 amend the clause so that development will also include starting to use underground cavities for the purpose of gas storage. That is a technical change to ensure that the new regime properly covers all forms of gas storage as currently undertaken both within underground strata and cavities.

Bob Neill: We take no issue with what the Minister says. It is a sensible and technical amendment.

Amendment agreed to.

Amendment made: No. 144, in clause 28, page 14, line 2, after second ‘the’ insert ‘cavity or’.—[Jim Fitzpatrick.]

Clause 28, as amended, ordered to stand part of the Bill.

Clause 29

Effect of requirement for development consent on other consent regimes

Jim Fitzpatrick: I beg to move amendment No. 341, in clause 29, page 14, leave out lines 34 to 37.

John Butterfill: With this it will be convenient to discuss Government amendments Nos. 343, 344 and 353 to 355.

Jim Fitzpatrick: Clause 29, together with clause 27, ensures that projects which require consent under the new single consent regime are not in addition required to obtain consents under other regulatory regimes. Subsection (1) states:
“To the extent that development consent is required for development”
it is not necessary to also obtain any of the consents listed in paragraphs (a) to (k). The amendments are needed to ensure that the devolution settlement with regard to Wales is maintained. Currently, a project that involves work on a heritage asset in Wales needs to obtain listed building consent, conservation area consent or scheduled monument consent from Welsh Ministers. Amendments Nos. 341, 343 and 344 amend the clause to ensure that a consent granted under the single consents regime will not override the need to obtain listed building consent, conservation area consent or scheduled monument consent from Welsh Ministers if such consent is currently needed.
For developments in England, there will be no such requirement to seek heritage consent as the order granting development consent will cover the issue. Amendment No. 343 also inserts a new paragraph that removes the need for notice under section 35 of the Ancient Monuments and Archaeological Areas Act 1979 to be given in cases in England where development consent is required. Amendments Nos. 353, 354 and 355 make consequential changes to the 1979 Act to exclude matters that have received development consent under the Bill from the possibility of committing an offence under that Act. I commend the amendments to the Committee.

Bob Neill: From our point of view, we are glad to have that on the record. It spells out the situation quite well and we are grateful to the Minister for that explanation.

Amendment agreed to.

Jim Fitzpatrick: I beg to move amendment No. 342, in clause 29, page 14, leave out lines 47 and 48.

John Butterfill: With this it will be convenient to discuss Government amendment No. 351

Jim Fitzpatrick: Clause 29, together with clause 27, states that projects which require consent under the new single consent regime are not in addition required to obtain consent under other regulatory regimes. Subsection (1) states:
“To the extent that development consent is required for development, none of the following is required to be obtained for the development or given in relation to it.”
Paragraph (h) refers to consent issued under section 39(1) of the Pipe-lines Act 1962 for the placing of pipelines over or under harbour waters. Consent in the first instance is for the harbour authority. Only if agreement cannot be reached will the matter be referred to the Secretary of State. It is not appropriate to remove the role of the harbour authority. In addition, the placing of a pipeline over or under harbour waters will not in itself amount to a nationally significant infrastructure project, so it is not considered appropriate to automatically disapply section 39(1) of the 1962 Act.
Amendments Nos. 342 and 351 propose to remove section 39(1) consents for placing pipelines in harbour waters from the list of consents that are automatically disapplied when development consent is required under the Bill. Instead, such works will require separate consent under section 39(1) of the 1962 Act. Should a promoter of a nationally significant pipeline wish to place part of their pipeline under harbour waters, they could still include that in their application to the Infrastructure Planning Commission as associated works, as referred to in clause 101. However, the requirement to obtain consent under section 39(1) of the 1962 Act will continue in force. I commend this amendment to the Committee.

Bob Neill: I do not have any issue with what the Minister said, but will he clarify one point? Given that we have discussed consultation arrangements, what happens when a developer proposes to put a pipeline under harbour waters? Will any harbour authority be a consultee under those circumstances? What will be the arrangements to ensure that they are consulted? One can imagine the circumstances in which they would have a legitimate material interest. If the Minister is not able to help me at the moment, he can take the matter away and perhaps come back to it later so that the authorities are not disadvantaged. As he said, harbour authorities frequently have a separate legal identity from the local authorities.

Jim Fitzpatrick: I am very happy to come back to the hon. Gentleman in due course and I am grateful for the opportunity to research exactly where that matter will be covered in respect of the Bill. By virtue of the fact that we are articulating that the appropriate sections of the 1962 Act will still apply, we are clearly indicating that there will be a requirement for harbour authorities to be involved. Therefore, consultative arrangements that would normally apply will apply here as a matter of course. However, I will double check to see whether our references are strong enough.

Amendment agreed to.

Amendments made: No. 343, in clause 29, page 15, line 4, at end insert—
‘(ja) to the extent that the development relates to land in England, consent under section 2(3) or 3 of the Ancient Monuments and Archaeological Areas Act 1979;
(jb) to the extent that the development relates to land in England, notice under section 35 of the Ancient Monuments and Archaeological Areas Act 1979;’.
No. 344, in clause 29, page 15, line 7, at end insert—
‘(l) to the extent that the development relates to land in England, consent under section 8(1), (2) or (3) of the Listed Buildings Act;
(m) to the extent that the development relates to land in England, consent under section 74(1) of the Listed Buildings Act.’.—[Jim Fitzpatrick.]

Jim Fitzpatrick: I beg to move amendment No. 345, in clause 29, page 15, leave out line 14.

John Butterfill: With this it will be convenient to discuss Government amendment No. 352

Jim Fitzpatrick: As we have already discussed, clause 29, together with clause 27, ensures that there are the required consent arrangements under the single consent regime. Subsection (2)(c) states that to the extent that development consent is required for a project, a notice under section 16(1) of the Gas Act 1965 with respect to safety conditions may not also be given in relation to that project. A notice under section 16(1) of the 1965 Act is issued by the Secretary of State and imposes safety conditions on the development or operation of an underground gas storage facility. It also applies to gas storage facilities that have received a consent by means of an order under section 4(1) of the 1965 Act.
Under the terms of subsection (2)(b) in which a project requires development consent under this Bill, no order under section 4(1) of the 1965 Act can be made. As they are linked to section 4(1) orders, it is automatically the case that notices about safety conditions under section 16(1) of the 1965 Act cannot be made for gas storage facilities consented under this Bill. The amendments seek to avoid confusion on the application of the 1965 Act by deleting references to section 16(1) of the Gas Act in the Bill.
None of this is to say that safety conditions cannot be imposed on the development of gas facilities within the single consents regime. That regime already contains a provision in clause 105(1) for the decision maker to impose whatever requirements it feels appropriate on the grant of development consent. That power can be exercised to serve a notice on terms equivalent to that which could previously be set out in a notice under section 16(1) of the 1965 Act given at the same time as a storage authorisation order under that Act.

Amendment agreed to.

Jim Fitzpatrick: I beg to move amendment No. 346, in clause 29, page 15, line 16, at end insert—
‘(2A) Subsection (2) is subject to section [Welsh offshore generating stations].’.

John Butterfill: With this it will be convenient to discus Government new clause 11—Welsh offshore generating stations.

Jim Fitzpatrick: We have discussed clause 29 in some detail. Subsection (2)(d) refers to orders made under the Transport and Works Act 1992. Currently, offshore wind farms can receive consent under section 37 of the Electricity Act 1989 or through an order under the 1992 Act. Provisions of the 1992 Act have been devolved to Welsh Ministers for projects based entirely in Wales. Welsh Ministers have made an order under the 1992 Act for an offshore wind farm at Scarweather Sands. In order to preserve the devolution settlement, these amendments are needed to allow Welsh Ministers to use the 1992 Act to consent to offshore wind farms in territorial waters adjoining Wales. That does not prevent a promoter from seeing a development consent for such a wind farm under the single consents regime if he or she so chooses.

David Jones: Perhaps the Minister could help me. How many of the current and recently granted applications for offshore wind farms in Wales—apart from the one at Scarweather Sands—been made under this particular provision rather than under the usual provision in the 1989 Act? Is it the case that almost every year consent for wind farms in excess of 50 MW generating capacity is applied for under the 1989 Act?

Jim Fitzpatrick: My understanding is that that is the case. If the hon. Gentleman will allow me, I will do some research into the numbers of applications and respond to him in due course.

Bob Neill: My hon. Friend’s helpful intervention reminds me of one other point that I would like the Minister to clarify. He has set out the way in which certain decisions will be devolved to Wales. We will all have received a written memorandum of evidence from the Mayor of London. Will the Minister confirm that it is not the Government’s intention to make light devolution arrangements in favour of the Mayor of London, which he is apparently requesting in the memorandum, particularly in relation to the 1992 Act?

Jim Fitzpatrick: If we were intending to make any such arrangements, we would have tabled amendments.
There have been only one or two applications under the Transport and Works Act in Wales; most are under the Electricity Act, as far as we are aware.

John Butterfill: May I say that in any event it is extremely unlikely that they would come within the scope of the clause, since this deals with Welsh wind farms?

Amendment agreed to.

Clause 29, as amended, ordered to stand part of the Bill.

Clause 30

Directions in relation to projects of national significance

Jim Fitzpatrick: I beg to move amendment No. 347, in clause 30, page 15, line 41, after ‘one’ insert ‘or more’.

John Butterfill: With this it will be convenient to discuss Government amendment No. 348

Jim Fitzpatrick: Clause 30 allows the Secretary of State to intervene in an application for consent for an infrastructure project in England that has been made to a body other than the commission. In such a case, if the Secretary of State thinks that the project is of national significance, even if it does not meet the statutory thresholds set out in clauses 13 to 26, he or she may direct the authority that is considering the application to refer the application to the IPC instead of dealing with it itself. The Secretary of State can only direct an application to be considered by the IPC if the project forms part of one of the fields mentioned in clause 13(5)—energy, transport, water, waste water or waste. Amendment No. 347 is designed to clarify the drafting and provide that a direction by the Secretary of State can be made when the development is part of more than one of the fields mentioned in clause 13(5).
Amendment 348 is designed to improve the drafting for clause 30. It ensures that where the Secretary of State directs an application to the IPC from another authority, the application is to be subsequently treated as if it were an application for development consent, and the development that forms the subject of the application is to be treated as development for which development consent is required under the terms of the Bill.
Amendment No. 348 also provides the Secretary of State with a power, in such cases, to direct that certain requirements of the Bill are modified in relation to the proposed development, or are to be treated as having been complied with. The ability to modify the Bill’s requirements in relation to an application, or to deem that such requirements have been satisfied, is essential. If it did not exist it would mean that a promoter could be required to re-do all the work involved in the pre-application stage simply because the Secretary of State directed the case after the application was submitted to the local planning authority. That is not to say that further work to the application would not be needed on the part of the promoter. Indeed, in many cases it will be necessary for a promoter to alter an application so that it becomes an application for an order granting development consent. An example of that might be rewording the application to fit the format of an order, as set out in clause 32.
The promoter may also need to engage more fully with the IPC and local communities under part 5, to reflect the revised application more fully. To that end, there is no obligation on the Secretary of State to include the provisions in clause 30(2)(c) in a direction referring the case to the IPC. Nevertheless, the principle should remain that a promoter should not be unreasonably penalised through having to do additional work because the Secretary of State has decided that an application made in good faith to a local planning authority should be referred to the IPC.

Bob Neill: There is one question on which I would like the Minister to be a little more specific. Does he anticipate circumstances in which—perhaps he will give a practical example—an application has commenced under the Town and Country Planning Acts regime, but it fits the nationally significant infrastructure projects criteria and the power of direction will have to be used? He said that clause 29 means that anything that comes within the national infrastructure projects criteria will have to be commenced under that regime. Perhaps it is my fault, but I am struggling to understand the circumstances in which a project might commence outside the regime but could subsequently be brought under it. Is it a question of size thresholds? We are concerned that the measure has the potential for mission creep as far as the IPC is concerned. Will the Minister explain a little more about the rationale behind the measure?

David Jones: Further to that question from my hon. Friend, I note that the provisions apply in England only and not in Wales. Will the Minister explain why a similar power is not given to Welsh Ministers to make the direction that the Secretary of State can make in England? The normal mantra is that the Government are reluctant to disturb the devolution settlement but, if anything, such a provision would enhance and strengthen the devolution settlement. Given that the thrust of the legislation is to streamline and generally to speed up the processes involved with consent application, there is no good reason why an equivalent power should not be devolved to Welsh Ministers.

Jim Fitzpatrick: I take the hon. Gentleman’s point. It looks like there is an inconsistency but, having devolved the power to Welsh Ministers, it is for them to make a judgment call. We discussed that only a few moments ago, and the position is that they have used the power under the 1992 Act or the 1989 Act and they will make a judgment on what is appropriate for Wales. I apologise for saying that the settlement allows them to do that—we do not intend to disturb the settlement because it is working very well. It would be a matter for them to judge an application as to which direction they recommend.
The Secretary of State would use the power mentioned by the hon. Member for Bromley and Chislehurst only in rare circumstances and on the basis of clear criteria. There might be a situation in which a series of proposed projects that are individually beneath the thresholds collectively represent a nationally significant project. For example, a series of offshore wind farms might be below the 100 MW limit individually, but above the limit when taken together. Directing such applications to the IPC would allow a better examination of the collective benefits and impacts of such a project.
As part of the White Paper consultation, we questioned whether it was appropriate for Ministers to be able to specify projects for consideration by the IPC by means of a direction, and a large majority of those who commented on the proposal believed that it was appropriate as long as the power was used sparingly and on the basis of clear criteria.

David Jones: The Minister’s example of a series of offshore wind farms amounting to one large wind farm would not be subject to the devolution settlement. In those circumstances, why should the Secretary of State not make such a direction even if the wind farm is off the Welsh coast?

Jim Fitzpatrick: I do not have anything to add on the difference between the powers given to Ministers in the Welsh Assembly Government and those given to the Secretary of State to direct.

Amendment agreed to.

Amendment made: No. 145, in clause 30, page 15, line 42, leave out ‘mentioned in section 13(5)’ and insert ‘specified in subsection (1A)’.—[Jim Fitzpatrick.]

Daniel Rogerson: I beg to move amendment No. 165, in clause 30, page 15, line 42, at end insert ‘and’.

John Butterfill: With this it will be convenient to discuss the following amendments: No. 239, in clause 30, page 15, line 43, leave out from ‘England’ to end of line 44.
No. 260, in clause 30, page 15, line 44, leave out ‘project’ and insert ‘development’.

Daniel Rogerson: I am sure that the Minister will correct me if I am wrong, but my reading of the clause is that there is provision for the Secretary of State to step in and take something away from a local authority and take it to the IPC. We are concerned that, although the Bill has already set out in what circumstances that should happen, there is an extra facility for the Secretary of State to do so. The amendment seeks to probe the Government on this issue. We have heard why they feel that this power is needed, but I am yet to be convinced that we should allow the Secretary of State further powers to remove things from local authority consideration and give them to the IPC.
Although the Minister was not leading for the Government when we debated the IPC, he will know that there is considerable concern among all Opposition parties about whether the provision is necessary. Having passed that part of the Bill, we are concerned that the IPC will gather in more powers or that more applications will go to it than necessary. Amendments Nos. 165 and 239 were tabled to test the Government on which measures it is appropriate to remove from local authorities and give to the IPC. I hope that the Minister will be able to reassure me that this power will not be used very often.

Bob Neill: May I refer to amendment No. 260 in this group? I understand the point that the hon. Member for North Cornwall made about his amendments. Our amendment makes a slightly different point, but I do not disagree with his observations. We are trying to seek clarity about definitions in this part of the Bill. As we observed when we started discussing this part of the Bill, the meaning of “development”—a well-known phrase for all who are involved in these matters—is sensibly restated in clause 28 as being defined in the normal Town and Country Planning Act terms. We are intrigued as to why it is appropriate to move away from the normal test for development, which requires planning permission, to something else, which is called “a project” and requires development consent. What is the difference in practical and legal terms between a development and a project? If something is a project, does that not automatically involve development? What is the distinction?
My hon. Friend the Member for Clwyd, West raised the further issue of whether the Minister was saying—and it seemed to be the case—that a number of adjacent areas of development can amount to a project. Who is to decide that? Are they not individual projects? Are they not all developments? It is not entirely clear why the Government chose to use the word, “project”, which is a novel term to bring into the legislation, as opposed to “development”, which is tried and tested as far as the courts and all those involved in planning are concerned.

Jacqui Lait: Without in any way wishing to enrich his professional friends, may I ask my hon. Friend to tell us how the word, “project”, should be defined in the Bill, so that people do not confuse projects with developments and hence have reason to take the matter to the court?

Bob Neill: I am grateful—I think—to my hon. Friend for that intervention. The Minister said that we are working as a team and team members are always keen to test each other’s mettle, as my hon. Friend’s question shows.
Let me give an example. Many people would refer to the Thames Gateway as a project, but it is clearly a series of developments. I hope that nobody would pretend that the developments at Barking Reach at the London end of the gateway are part of the same project, for planning law purposes, as the development of the port facilities at Shell Haven or a barrage at Sheerness, if one is ever to be built. People might argue—and it is common parlance for the man in the street—that they are part of the Thames Gateway project, but they are all significant developments in their own right, and some of them could qualify as nationally significant infrastructure projects. That is one example of a negative application of the term, “project”.
The implication is that a project involves more than one piece of development. I can see that that might work if multiple consents are required—for instance, when we deal with a pipeline to a refinery or an energy plant—but that seems the only sensible reason for using the provision, which would allow all the consents to be rolled up together. I would be grateful if the Minister would amplify that point, because there is a risk of confusion in the public’s mind. I do not think that that was the Government’s intention—and I am sure that they had a lot of advice from lawyers on the use of the “project”—but because the term is a novel departure, I would be grateful for a clear justification for its use before some of my erstwhile colleagues find themselves extremely busy litigating on the definitions.

Jim Fitzpatrick: With respect, I urge the Committee to reject the amendment. We believe that amendments Nos. 165 and 239 go together. They are intended to remove the need for the Secretary of State to be satisfied that a project that is the subject of an application to a body other than the commission is of national significance before directing it to the IPC. We are not sure why hon. Members believe that that is a good idea, because there seems to be little justification for calling in small projects from local authorities for a decision by a national body. As the Committee knows, we intend the single consents regime to be reserved for the biggest and most important infrastructure projects. Only projects of national significance should go through that regime. Others are best decided by local planning authorities.
Amendment No. 260 would require the Secretary of State to be satisfied about the national significance of a “development”, rather than a “project”, before directing an application to the IPC. Again, with respect to the hon. Member for Bromley and Chislehurst, we believe that it is not necessary. The single consents regime will work on the basis of projects being nationally significant, as can be seen in clause 27(1). Development consent will be required for development
“to the extent that the development is or forms part of a nationally significant infrastructure project.”
Clause 30(1)(a) and (b) make it clear that the application that the Secretary of State is considering directing to the IPC must refer to “development” that is or forms part of a relevant “project”. I am advised that the word, “project”, covers development and matters that are not currently treated as development, such as listed building consent. It is designed to cover many types of consent, including associated works such as connection to the electricity network for a power station.

David Jones: Is it the Minister’s understanding that a “project” should be an undertaking mounted by one individual or a series of individuals acting in concert? If so, how can his example of a series of separate applications for offshore wind farms be regarded as one project, if the applications were made by different developers?

Jim Fitzpatrick: The hon. Gentleman makes a good point, and I am happy to consider it, now that I fully understand where he is coming from. The judgment about whether to refer is a matter for the Secretary of State, but I shall consider the arrangement that the hon. Gentleman describes, whereby different developers may collectively be in a similar area, and whether that constitutes a description of a project. I hope he will forgive me, as I am not in a position to respond to that point now, but I shall come back to him. Having explained our interpretation of the amendments, which do not meet the arrangements requested by the hon. Member for North Cornwall, and having explained the definition of “project” and “development” in the Bill, I hope that the hon. Gentleman and the hon. Member for Bromley and Chislehurst will not press their amendments further.

Daniel Rogerson: I thank the Minister for his explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 146, in clause 30, page 15, line 43, leave out ‘England’ and insert
‘one or more of the areas specified in subsection (1B)’.
No. 147, in clause 30, page 15, line 44, at end insert—
‘(1A) The fields are—
(a) energy;
(b) transport;
(c) water;
(d) waste water;
(e) waste.
(1B) The areas are—
(a) England;
(b) waters adjacent to England up to the seaward limits of the territorial sea;
(c) in the case of a project for the carrying out of works in the field of energy, a Renewable Energy Zone, except any part of a Renewable Energy Zone in relation to which the Scottish Ministers have functions.’.
No. 348, in clause 30, page 15, line 45, leave out subsection (2) and insert—
‘(2) The Secretary of State may direct—
(a) the application to be treated as an application for an order granting development consent, and
(b) the development to which the application relates to be treated as development for which development consent is required,
for specified purposes or generally.
(2A) A direction under subsection (2) may provide for specified provisions of or made under this or any other Act—
(a) to have effect in relation to the application with any specified modifications, or
(b) to be treated as having been complied with in relation to the application.
(2B) If the Secretary of State gives a direction under subsection (2), the relevant authority must refer the application to the Commission instead of dealing with it themselves.’.—[Jim Fitzpatrick.]

Daniel Rogerson: I beg to move amendment No. 166, in clause 30, page 16, line 7, leave out from ‘application’ to end of line 8 and insert
‘for a period of up to three months’.
The amendment relates to my previous point, but obviously when I tabled it, we had yet to have that debate. However, our concern is that if the Secretary of State considers whether an application should be moved from one regime to another, a time limit ought to be imposed. Later facets of the Bill impose draconian time limits on everyone else regarding consultation, presumably in the hope that applications can be dealt with swiftly. My concern is that there might be an opposite effect, and that an application that might have proceeded fairly well under the old regime will stall while the Secretary of State decides whether to move it to the IPC. I seek the Government’s reassurance that they will take any such decision very swiftly so that the developers and local communities affected are reassured that the application will not hang over them for a great length of time.

Jim Fitzpatrick: I hope that I can provide the hon. Gentleman with the appropriate reassurance so that he will not feel it necessary to press the amendment, which is an attempt to secure reassurance about time frames. He and his hon. Friends would like the Secretary of State to decide as soon as possible whether to direct an application to the IPC, and they would consequently impose a time limit on the length of time in which the Secretary of State could instruct the relevant authority that held an application not to proceed with it.
We intend that any decision will be made speedily. There is no benefit to anyone involved if an application is held in limbo for a long period. At the same time, however, putting a time limit in the Bill would not be appropriate. The Secretary of State will, in all cases, make a decision as quickly as is reasonably possible about whether to direct an application to the IPC.
The power to direct a local planning authority not to proceed with an application is not new. The Secretary of State already has similar powers through directions under article 14 of the general permitted development orders under the Town and Country Planning Act 1990, and there is no time limit on how long those orders can last. On that basis, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Daniel Rogerson: I am pleased to hear the Minister say on record that the Secretary of State would seek to take such a decision as speedily as possible. Although I am no lawyer, I understand that if a provision in a Bill were to be tested or explored in a court, our discussions in this Committee about the intention of the legislation might inform the decision. On that basis, I will not press the amendment to a Division, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jim Fitzpatrick: I beg to move amendment No. 349, in clause 30, page 16, line 11, after ‘decide’ insert—
‘(a) ’.

John Butterfill: With this it will be convenient to discuss Government amendment No. 350.

Jim Fitzpatrick: Clause 30 allows the Secretary of State to direct an application for consent for an infrastructure project in England that has been made to a body other than the commission. In such a case, if the Secretary of State thinks that the project is of national significance, even if it does not meet statutory thresholds set out in clauses 13 to 26, he or she has the power to direct the authority that is considering the application to refer the application to the IPC, instead of dealing with it itself.
The primary purpose of the amendments is clarification. The Secretary of State can require the authority considering the application to provide information to allow him or her to decide whether or not to direct an application to be referred to the IPC.
The amendments also clarify that information can be used by the Secretary of State to decide the terms in which such a direction should be given. That reflects the fact that the Secretary of State may specify in the direction that some of the requirements of the Bill are to be deemed to have been complied with, as detailed in Government amendment No. 348. The Secretary of State might make a direction in such terms if he or she was satisfied that work already done while making an application to the authority would substantially satisfy the requirements in the Bill on pre-application consultation in chapter 2 of part 5. That works on the principle that a promoter should not be unreasonably penalised through having to do additional work because the Secretary of State has decided that an application made in good faith to a local planning authority should be referred to the IPC. I commend the amendments to the Committee.

Amendment agreed to.

Amendment made: No. 350, in clause 30, page 16, line 11, after ‘(2)’ insert ‘, and
(b) the terms in which a direction under subsection (2) should be given.’.—[Jim Fitzpatrick.]

Clause 30, as amended, ordered to stand part of the Bill.

Clause 31 ordered to stand part of the Bill.

Schedule 2

Amendments consequential on development consent regime

Amendments made: No. 148, in schedule 2, page 114, line 16, leave out ‘In’.
No. 149, in schedule 2, page 114, line 17, after ‘authorisation)’ insert ‘is amended as follows.
(2) ’.
No. 150, in schedule 2, page 114, line 20, at end insert—
‘(3) In subsection (1A)(b) for “pipe-line which is the subject of a pipe-line construction authorisation” substitute “nationally significant pipe-line”.
(4) After subsection (1A) insert—
“(1B) For the purposes of subsection (1A), a pipe-line is a nationally significant pipe-line if—
(a) its construction has been authorised by a pipe-line construction authorisation, or
(b) development consent under the Planning Act 2008 is required, and has been granted, for its construction.”.’.
No. 351, in schedule 2, page 114, line 21, leave out paragraph 8.
No. 352, in schedule 2, page 116, line 1, leave out paragraph 17.
No. 353, in schedule 2, page 116, line 16, leave out ‘under the Planning Act 2008’.
No. 354, in schedule 2, page 116, line 19, leave out ‘under the Planning Act 2008’.
No. 355, in schedule 2, page 116, line 19, at end insert—
‘21A In section 37 (exemptions from offence under section 35) after subsection (1) insert—
“(1A) Section 35 does not apply to the carrying out of any operations for which development consent has been granted.”
21B In section 61(1) (interpretation of Act) at the appropriate place insert—
““development consent” means development consent under the Planning Act 2008;”.’.—[Jim Fitzpatrick.]

Schedule 2, as amended,agreed to.

Clause 32

Applications for orders granting development consent

Clive Betts: I beg to move amendment No. 391, in clause 32, page 16, line 25, leave out ‘Commission’ and insert ‘Secretary of State’.

John Butterfill: With this it will be convenient to discuss the following amendments: No. 392, in clause 33, page 17, line 14, leave out ‘Commission’ and insert ‘Secretary of State’.
No. 393, in clause 33, page 17, line 15, leave out ‘its’ and insert ‘the’.
No. 206, in clause 66, page 32, line 40, at beginning insert ‘Subject to subsection (1A) below,’.
No. 85, in clause 66, page 32, line 40, leave out from beginning to first ‘the’ in line 3 on page 33.
No. 284, in clause 66, page 32, line 40, leave out subsection (1).
No. 207, in clause 66, page 33, line 2, at end insert—
‘(1A) Where the applicant for development consent proposes, or it is subsequently considered by the Panel that, any order granting development consent should include provisions made in exercise of any of the powers conferred by section 105(6)(a) or (b), the Panel has the functions of—
(a) examining the application, and
(b) making a report to the Secretary of State on the application setting out—
(i) the Panel’s findings and conclusions in respect of the application, and
(ii) the Panel’s recommendation as to the decision to be made on the application.’.
No. 285, in clause 66, page 33, line 3, leave out ‘in any other case’.
No. 293, in clause 75, page 36, line 8, leave out paragraph (a).
No. 208, in clause 75, page 36, line 9, at end insert
‘and neither the applicant for development consent proposes, nor the Commissioner considers, that any order granting development consent should include provisions made in exercise of any of the powers conferred by section105(6)(a) or (b).’.
No. 294, in clause 75, page 36, line 10, leave out ‘, in any other case’.
No. 209, in clause 77, page 36, line 25, at end insert—
‘(1A) If the Council consider that order granting development consent should be made and should include provisions made in exercise of any of the powers conferred by section 105(6)(a) or (b) it shall refer the single Commissioner’s report and a report of its views to the Secretary of State for determination.’.
No. 295, in clause 77, page 36, line 31, at end add—
‘(5) Decisions made under this section shall be subject to approval by the Secretary of State.’.
No. 210, in clause 93, page 43, line 20, leave out ‘66(2)’ and insert ‘66(1A) or (2)’.
No. 211, in clause 93, page 43, line 22, leave out ‘section 75(2)(b)’ and insert ‘sections 75(2)(b) or 77(1A)’.
No. 396, in clause 93, page 43, leave out lines 26 to 29 and insert ‘means the Secretary of State.’.
No. 212, in clause 105, page 50, line 23, leave out ‘sections 106 and’ and insert ‘section’

Clive Betts: This debate relates to one of the most important issues in the Bill. I have had help with some of the drafting from the Campaign to Protect Rural England. On some aspects of the Bill, I am much more enthusiastic and sympathetic to the Government’s approach than perhaps the CPRE is. Nevertheless, on the issue of who should make the final decision on an application that is being considered by the commission, I have come to a different view from that of Ministers. The amendment, therefore, together with other amendments that relate to later clauses, but are necessary for a consistency of approach, would substitute the Secretary of State for the commission as the final decision maker, as is the case under current town and country planning legislation.
This is a fundamental issue of accountability. The decisions that will be made concerning major projects will be major, which is why we are setting up a new procedure for dealing with national infrastructure projects. By their very nature, they are important matters. More than one individual in the commission will ultimately make the decision, but it is important that individuals are accountable, at least to an extent. They must be accountable in the sense that hon. Members know who they are. I doubt that many people could name a single member of the Planning Inspectorate, and I am sure that once we have a commission and the commissioners have been appointed, not many people in the House will know who any of them are. We know who the Secretary of State is, however, and we know who the Ministers are, if a Minister makes the ultimate decision because the Secretary of State has a particular conflict of interest under current legislation. The Secretary of State can be held to account in a number of ways: a debate in the House; written questions; and oral questions. The general methods that the House uses to hold Ministers to account can be used to hold them to account for decisions on matters that would be considered and recommended by the commission.
It is important that while Parliament will eventually approve a national policy statement, in the end it will be the commission that interprets that policy statement to decide whether a particular application should be approved. Therefore, ultimately, it should be a politician who makes the final decision on whether the interpretation by the commission is correct. I know that the response will be that in such cases Ministers act in a quasi-judicial manner, not as politicians, and I accept that. Under existing planning legislation, Ministers act in not a purely political way, but a quasi-judicial way—there is a difference. Nevertheless, they can still be held to account to explain how they have acted. That decision cannot be voted on in the House, a Minister cannot be second-guessed, and a Secretary of State’s view cannot be challenged by tabling an amendment to it, but at least the Secretary of State is can respond across the Dispatch Box in the Chamber, or by replying to a parliamentary question, and give reasons for a decision in a way that a commission cannot.
It will be interesting to hear from the Minister precisely how the commission might be accountable. If a Member tables a question asking for reasons why a particular decision has been reached, will the Secretary of State answer it, or will it be passed on to the commission? How can a commission answer a parliamentary question? We have struggled sometimes, when dealing with agencies, to get questions actually responded to properly. Some of those decisions will be very important, such as where a nuclear power station is located or whether one should be located in a particular place at all. We need to understand the nature of accountability.
I have great respect for my hon. Friend the Minister for Local Government. He has taken the matters that have been raised very seriously. However, the Government must understand that it is not only groups such as the Campaign to Protect Rural England that have concerns. Many of my colleagues on this side of the Committee also share this type of concern.
If I ask my colleagues who are not fortunate enough to be members of the Committee for their impressions about what the Bill does, they say that it takes away accountability from politicians and passes it to a quango. However, it is a fact that there are good things about the Bill, such as the attempt to take major decisions on major infrastructure projects by using a better process—I believe that it is a better process. The fact that it is often characterised as being undemocratic is largely down to the fact that the Secretary of State is removed from the process at the end.

Alun Michael: My hon. Friend makes a good case in his examination of what the Government propose. I look forward to hearing the Minister for Local Government’s reply. However, is part of the problem the fact that advice to Ministers is often excessively inhibiting in terms of the application of common sense? I say that with the experience of having had to make decisions on planning appeals, when sometimes the advice of officials was that one could not even look at the application in proper terms. Therefore, something more clinical that allows the application of judgment within a context set by Ministers might be a way of reintroducing common sense into the examination of such matters.

Clive Betts: I bow to my right hon. Friend’s greater knowledge. He has been on the inside track and has been responsible for some of the decisions that Ministers have to take. That proposal would take my amendment further. I am talking about not the basis on which decisions are made, but who actually makes them. He goes one stage further and asks whether, if a Secretary of State makes a decision, that decision should be made on a different basis—a less quasi-judicial basis, and a more common-sense basis, as he would term it.

Alun Michael: Two aspects concern me. One is that the degree of detail regarding a major or serious application might require such an enormous amount of commitment from Ministers that the situation would be rendered almost impractical. The other is about the sort of advice that tends to become excessively protective about what might be said about how a decision has been taken. That constricts the process with which Ministers have to engage at present when dealing with detailed and complex applications.

Clive Betts: I take that point, and I also accept the point about the amount of information that the Secretary of State would have to consider. There are obvious time constraints, but that applies some pressure to limit the number of projects that go through the process. Most of us are keen to see that there should not be an open house for a large number of projects.
With regard to the number of decisions, Secretaries of State will, of course, have to take such decisions on a range of issues that have gone into the planning appeal system. They will not be kept out of decisions on planning matters. The slight irony is that Secretaries of State will make decisions on all sorts of relatively small projects, but not the biggest ones. Today we have looked at the nature of the projects that will go through the new process. Essentially, when we go through clauses 13 to 26—I am giving a quick rÃ(c)sumÃ(c) here—small projects go through the traditional planning route, and larger ones take the new route through to the IPC. The same projects will be considered, but some will be large and some will be small. In many cases, the small projects will end up with the Secretary of State and the large ones will not. There is something strange about a situation in which the smaller and less important a project is, the more likely it is that Ministers will be involved.
Despite the intervention of my right hon. Friend the Member for Cardiff, South and Penarth about the basis on which decisions are made, Secretaries of State can come to a different view from inspectors under the current planning regime. That is presumably because they can look at things in a different way. During the evidence hearings, we had a good discussion about the expertise that commissioners would need. One thing that they need is an understanding of how the public regard things. That is not the most important matter in planning decisions, but Secretaries of State appear to be more able to apply a wider understanding of matters than planning inspectors when reaching decisions.
It is a case in point that Brighton and Hove Albion football club probably would not be looking forward to a new ground if the decision had not gone through the Secretary of State. I am sure that the Secretary of State made that decision in an entirely proper manner, but came to a different decision from the planning inspector. I was in Snowdonia national park last year and saw the reopening of an old railway line. My understanding, again, is that the Secretary of State—the Deputy Prime Minister at that time—overturned the inspector’s decision. That railway line will be a major tourist attraction and an advantage to the area, but it would not have reopened if the planning inspector’s decision had stood. The Secretary of State saw the matter in a slightly wider and rounder context.
Ministers can come to a proper view and they hold a role that is different from that of the planning inspector, due to their particular knowledge and experience. They come to decisions that are, presumably, also different to those that a commission would make. There are examples of when having the involvement of a Secretary of State proved beneficial. I am sure that Ministers will not say that the decisions of those Secretaries of State were wrong. If they were right, surely there is an advantage in having them in that role. I will not take up too much of the Committee’s time, but these are important matters.
I have heard the counter-argument that it is wrong for Secretaries of State to take decisions because they can be the applicant and the eventual determiner of the application, but that is not true in most cases. I would be interested to hear my hon. Friend the Minister say how many of the cases that will go to the IPC are likely to have the Secretary of State for Communities and Local Government as the applicant. We had a good discussion on clause 13 and I got assurances that even new examples of projects would fall within the categories listed under clause 13(5)(a) to (e): energy, transport, water, waste water and waste. My understanding is that even if the applicant were a Secretary of State, in those cases, they would be the Secretary of State for Transport, the Secretary of State for Business, Enterprise and Regulatory Reform, or the Secretary of State for Environment, Food and Rural Affairs.
Quite possibly, the Secretary of State would not be the applicant at all, because while they would be responsible for the national policy statement on nuclear power stations, for example, it would be likely that a private company would be the applicant. In how many cases is it likely that the applicant will be the Secretary of State for Communities and Local Government?

Bob Neill: The hon. Gentleman makes a powerful case and I agree with his point. Perhaps he might also consider that his logic is reinforced, while that of those who object to his amendment is undermined, by the situation in London. The Mayor of London was given planning powers through the Greater London Authority Act 1999. Some of us made the objection that the Mayor might find himself as the judge of a matter in which he was the applicant and the promoter. The Government took the stance that that was not a problem because it was highly unlikely that the Mayor himself would ever be the applicant, and it was more likely that the applicant would be Transport for London, which is part of the empire that he controls, but not him.
The Secretary of State for Transport is far less directly controlled by the Secretary of State for Communities and Local Government than Transport for London is by the Mayor. If such an argument was valid for the Greater London authority, it is even more valid in this instance. I hope that the hon. Gentleman will take that argument as something that reinforces his point. There is a precedent of the Government conceding to his argument.

Clive Betts: I take that intervention as reinforcing my point, subject to anything that my hon. Friend the Minister might say to correct it. I will take the argument at face value.
Under existing planning law, it is possible for the Secretary of State to be the applicant and the determiner. It is quite possible for the Secretary of State for Communities and Local Government to put in a planning application for a new office building, an alteration to an existing office building, or any other project. However, just because the Secretary of State could be the applicant under current planning legislation, and will remain the applicant for all but major projects and the determiner in such circumstances in the future, we should not amend the whole of existing planning law and remove the Secretary of State as the final arbiter for appeals within that legislation. Because, for the occasional project, a Secretary of State could be the applicant and the determiner, is there really a case for removing the Secretary of State, in every circumstance, from being the final arbiter on these most important projects?
I am not sure that the case has been made for why these major projects should be treated differently from every other appeal on every smaller planning application that is made. If the fundamental argument is that the Secretary of State should not be the applicant and the determiner, in how many cases, realistically, will the Secretary of State be the applicant? Probably one, occasionally, out of the 40-odd that will be appear before the commission each year. If that is the only reason behind the approach, for all other reasons—accountability, the general view that is taken of the Bill, consistency, and the fact that the Secretary of State just might bring to bear a different viewpoint that might occasionally mean that a decision of the commission is changed—I hope that my amendment will be given careful consideration.

Bob Neill: I congratulate the hon. Gentleman on tabling the amendment and on putting forward an extremely cogent and powerful case. It is hard to say much more than that my hon. Friends and I agree with it. The case is compelling. I urge Ministers to think again about this because it harks back to the concern that many of us have expressed almost from the beginning of our consideration of the Bill. The good in the Bill—the idea of the separation of national policy from the consideration of specific sites to save time at inquiries, and the virtue of the single consent regime—could all be undermined by a lack of public confidence arising from an ultimate lack of accountability.
From the public’s point of view, it is desirable that the decision maker should be capable of being put on the spot. That is precisely the point that the hon. Gentleman made. The Minister, even acting quasi-judicially, can be put on the spot in this House. If Ministers get a reputation and it is perceived by the public and, let us be blunt, by the Prime Minister and others, that they are too often put on the spot, they will not remain Ministers for much longer. There is a discipline on Ministers, when exercising even quasi-judicial powers, to make sure that they get things right because they can be put on the spot either by hon. Members or in the courts.
There will also be a professional discipline on members of the IPC to get it right, but the big difference will be the public perception of whether that discipline is exercised clearly and transparently. We can have as much confidence as we would hope that members of the IPC will get things right, but that is not the same as the fact that the ultimate arbiter is someone who is elected. Ultimately, if we dislike a decision enough, we can kick out the person who reached it or their party. When we are talking about decisions that profoundly affect the lives of those immediately concerned, that seems to be right and proper, which is why we strongly support the amendment moved by the hon. Member for Sheffield, Attercliffe and hope to have a chance to vote for it.
Our amendments in this group are less ambitious in scope, but if, for any reason, the hon. Gentleman’s amendment does not succeed, we will want to return to them. If one looks at subsequent clauses in the Bill that are linked to this, such as clause 66, one sees that there is a dangerous circumstance in which it will be possible for the commission effectively to disapply certain legislation when making its decisions. The point of our amendments is to address that and change it consistently throughout the Bill.
Amendments Nos. 206 and 207 set out the scheme of what we are seeking to do. They would insert in clause 66 a new subsection (1A) so that if it was proposed that a development consent order would apply, modify or exclude legislation—that power will reside with the IPC—such cases should be decided by not the IPC, but the Secretary of State. It seems to us that that represents a more middle view than the hon. Gentleman’s amendment. Even if the Government persisted in giving the ultimate power of decision to the IPC, it cannot be right constitutionally, never mind in terms of accountability, for an unelected and unaccountable body to have the power to apply, modify or exclude legislation that has been passed by the House. The decision to exclude or modify legislation passed by the House should be taken only by someone who can be put on the spot in this House and who is directly accountable to it, and that means the Secretary of State. I hope that the Committee will go further by accepting the hon. Gentleman’s argument that that should apply across the board, but we think that the power is a striking example of how transparency and democratic accountability will be seriously undermined if we leave the provision as it is.

Daniel Rogerson: I support the comments made by the hon. Member for Sheffield, Attercliffe, who raised a question that concerns many Members in the Committee and others in the House. The ultimate test will be when constituents come to us regarding one of these applications and ask what the next stage is and how things will work. They will be surprised to find that, ultimately, the decision does not rest with the Secretary of State, which is what they are accustomed to. The hon. Member for Bromley and Chislehurst also made some strong points in that regard.
The amendments in this group that we tabled propose a different way of giving the Secretary of State the ultimate responsibility for taking such decisions. I certainly support the hon. Member for Sheffield, Attercliffe and hope that he will continue to press the Government on the issue.

Alun Michael: I want to challenge one of the points that was made by the hon. Member for Bromley and Chislehurst. He said that the pressure in the current system is pressure on Ministers to get things right, but I suggest that that is not actually true. The pressure on Ministers is to play safe and anticipate the legal challenges that might arise if they do not get the procedure right. That is an inhibition, rather than an encouragement to come up with the right decision, and that is why, along with one other issue that I shall address in a moment, there is a need to reconsider how we have been doing things up to now.
My hon. Friend the Member for Sheffield, Attercliffe rightly referred to the decision taken by my right hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott), the former Deputy Prime Minister, to reopen a railway in north Wales.
I remember that application and the discussion around it particularly well—not just because I am a north Walian and I know that part of that county, but because I was Secretary of State for Wales at the time and followed the deliberations and the decision of the then Deputy Prime Minister with great interest. I think that he made the right decision, but it was also a decision that took a certain amount of courage because, as my hon. Friend said, a Secretary of State took a different decision to that recommended by an inspector. Indeed, the opinions on both sides of that particular debate were very strong indeed. Rather than taking the courageous step of re-examining the issue and trying to make the right decision, the easy option would have been to say, “I will do what the inspector says because that is the safe option and no one can criticise me for it”.
I suggest to the hon. Member for Bromley and Chislehurst that the pressures in the system actually relate to safety. Another type of inhibition that Ministers may face is the way in which actions can be misinterpreted. When I was Secretary of State for Wales there was an application where the pros and cons did not make sense on paper, and I was advised by officials not to visit the site because it would be interpreted as becoming involved with the details. In that particular case, the argument was whether granting planning permission for a single house at the end of a row would create a precedent for opening up further applications for development in the open countryside. When driving through that particular area, as I did after ignoring the advice I had been given, it became clear that although on a plan the area seemed to be the next stage into the open countryside, the next site to the appeal site was a hill that was so steep a house would have to be hung off it to build there. Absolutely no precedent at all was being created; it was simply an obvious infill site. As I said, the hon. Gentleman is wrong to suggest that all the pressures are in the direction of good decision making. It is greatly to the credit of Ministers that often they pursue the idea of taking the right decision against the play-safe advice.

Richard Benyon: Of course I defer to the right hon. Gentleman’s experience in these matters, but in his intervention on the hon. Member for Sheffield, Attercliffe he seemed to suggest that the process could on occasion swamp a Minister’s ability to take a decision. He also suggests that to take the right decision, a Minister often has to show some courage. To pursue the logic of that argument, he is saying that we should not go down the proposed path because of process and the likelihood that Ministers would lack courage. I have a slightly more generous view of human nature and of the strength of the will of the electorate. I also believe that a Minister’s superiors would get rid of poor Ministers who lack courage and that Ministers should improve the process so better decisions are taken. Am I being naive?

Alun Michael: The hon. Gentleman is of course being naive, but he is also doing what Members of Parliament do best: jumping into the middle of an argument to avoid understanding the full logic of it. I was about to continue the point about the system not acting in the way that naive Conservative Members seem to believe to develop a point about the complexity of issues.
Another application with which I had to deal was the final stages of whether the New Forest should be declared a national park. At that time, I was dealing with the matter as Minister of State at the Department for Environment, Food and Rural Affairs rather than as a Secretary of State, so I was not under quite the same pressure as a Secretary of State, who has to focus for a considerable time on the complexities of a major application; nevertheless it involved carving out lots of time trying to understand complex issues and arguments that had continued for about 40 or 50 years—it was a long, drawn-out process. I had the benefit of the inquiry report and so on, but I had to study a great deal of detailed information to apply logic to what the outcome should be.
I therefore suggest that in balancing the accountability issues it asks an awful lot of Ministers for them to deal with the whole of a major application, because the bigger the application and the more serious the issues the greater the detail. In such circumstances, there is an alternative, which has merit: the principles are decided by Ministers and a body is established to consider the details and decide whether those principles will be fully applied in respect of a big, complex application.
I agree with my hon. Friend the Member for Sheffield, Attercliffe, who made a strong case for ministerial accountability. However, sometimes the pressure of playing safe combined with the complexity of taking major decisions does not necessarily result in a satisfactory process and that must be weighed in the balance with my hon. Friend’s conclusion. I shall be interested to hear how our ministerial colleagues came to their conclusion to introduce the Bill.

Jacqui Lait: I support my hon. Friend the Member for Bromley and Chislehurst and the hon. Member for Sheffield, Attercliffe and add my congratulations to those of others on his common-sense approach to the proposal. I was particularly struck by the irony of the Secretary of State having to make decisions on small but controversial planning applications but not having any responsibility for the large ones, although the Minister will probably tell us that they will have been dealt with by Parliament under the national policy statements procedure.
This debate brings us back to the responsibility of Parliament, which the Bill ignores. The Government are taking away the role of Members of Parliament to hold Ministers to account on matters that are of deep and immediate concern to the electorate.
The point is not just about small decisions being taken by the Secretary of State but about how we hold the IPC to account. I do not want to put words in the Minister’s mouth but I suspect that he will say that the IPC has to provide the Secretary of State with an annual report. That is hardly the same as a written question, an Adjournment debate or bringing Ministers to the Floor of the House to answer for their decisions.
Another, slightly mischievous, thought crosses my mind on the matter of small but controversial planning applications. Despite our concerns that an ever-increasing number of planning applications will go to the IPC and bearing in mind the discussion that my hon. Friend the Member for Clwyd, West had about offshore wind farms, it could be in the interests of developers to put together a project rather than a development so it does not have to go to the Secretary of State but is, theoretically, dealt with more speedily under the IPC process. In that case, our constituents would feel doubly offended that they had no right of recourse to the House on planning applications, many of which should have been decided by the Secretary of State.

David Jones: I am interested in my hon. Friend’s example, which is not far-fetched. My constituency seems to have been targeted by different wind farm developers who make separate applications and large tracts of it are being covered by wind turbines. I can see the attraction to those developers of putting together a concerted application so that it can be dealt with by the IPC rather than having to go through the planning process and suffering the opprobrium of local people.

Jacqui Lait: My hon. Friend is absolutely right.

John Healey: He is not.

Jacqui Lait: But our purpose in trying to get this sort of information out of Ministers is precisely to test whether our suppositions are right and whether there is a robust reply to them. For example, it is not beyond the bounds of possibility for a new nuclear power station to be built in Dungeness, which would indeed be a nationally significant infrastructure project. A wind farm is already going up not far from there and there could be another application for a wind farm. We are still discussing the size of hazardous waste facilities and with the development of technology there could be applications for smallish facilities to be built into the nuclear power application.
It would not be difficult to put together a series of developments that would go to the Secretary of State if they were taken singly, but put together as a project would have to go through the IPC, when we would not be able to raise the issue on behalf of our constituents. If the Minister could answer all our questions about the role of Parliament and Ministers’ responsibilities we would be exceedingly grateful.

John Healey: I welcome you back to the Chair, Sir John.
This large group of amendments tries to do two different things: one block, tabled by my hon. Friend the Member for Sheffield, Attercliffe and others would make the IPC a recommending rather than a decision-taking body, requiring the panel of the IPC or a single commissioner to report their recommendations to the Secretary of State for his decision. The other block of amendments would allow the IPC, in certain circumstances, to take decisions but not when orders that granted development consent included the application, modification or exclusion of other legislation.
My hon. Friend was right to say that this is one of the most important parts of the Bill. The arguments have had a good airing both this afternoon and in our debates on parts 1 and 2, as my hon. Friend acknowledged, and he made some clear and important points. I am glad he accepts that Ministers with a planning role act in a quasi-judicial way; he also recognised that in that capacity Ministers’ decisions cannot be challenged or overturned in Parliament as that is for the courts.
My hon. Friend’s main concern, however, was that under the Bill as drafted, the IPC can take decisions in a limited number of cases and Ministers cannot be questioned. His argument was that at present Ministers can at least be questioned in the House but he was concerned about whether the IPC could be questioned.
Clearly, there are differences. It would not be possible to call the IPC to account on the Floor of the House, but there are ways of doing so and some of my hon. Friends are used to doing just that with bodies such as Ofsted.
If the House accepts our proposal to set up a special Select Committee, that Committee could regularly be active in requiring the chair and the commission to account for the decisions that they take, rather than simply explaining the work that may be periodically set out as decisions included in an annual report.
As with Ofsted, it is possible to table parliamentary questions that demand answers directly from the IPC. I say “directly from the IPC”, but of course the convention of the House is that answers are routed through Ministers. Nevertheless, the answers are given by the bodies. When I was Minister responsible for statistics, I performed that function regularly with the Office for National Statistics. If the answer is in a letter to any hon. Member, that information and explanation is printed in Hansard. It is available to all hon. Members via the House’s procedures. It is not the same, but there is considerable scope for holding the IPC directly to account for its work and decisions.

Richard Benyon: Is the Minister not simply saying that a Minister is, therefore, a mouthpiece for an organisation, rather than the accountable person at the end of the line with whom the buck stops?

John Healey: Not precisely. In the case of the Office for National Statistics, I was not even a mouthpiece in respect of questions that were properly for the national statistician. I was the postbox, and, in many respects, the post boy. The questions came to me; I passed them to the national statistician. I got the answers back, then passed them on to the Member of Parliament.
In the context of planning, it is not that the Minister is the mouthpiece. The House can challenge Ministers to explain decisions that they take in their planning capacity. It is not for Parliament to challenge or to overturn those decisions. Any challenge or overturning of a decision that a Minister takes in their planning capacity must be done through the courts. The same would be the case for rights to challenge and methods to overturn any decision that may be taken by the IPC.

Alun Michael: The example of statistics that my hon. Friend has just referred to is quite illuminating in the context. Does not he agree that, in acting as a postbox for the Office for National Statistics and in transmitting those replies on to Members of the House, he would have been informed and aware both of the concerns being raised by hon. Members, and of the answers being given, independently, by the Office for National Statistics? Did he not find that experience useful when he came to deal with the Statistics and Registration Service Bill not many months ago, when, as a Minister, he was accountable for the legislation going through the House? The relationship is not merely one of passing pieces of paper, it is an intelligent engagement with an independent body pursuing things that have been decided by Government or Parliament.

John Healey: I did, indeed. My right hon. Friend knows that well, as he also served on the Statistics and Registration Service Bill Committee, for which I am grateful to him. I found that useful in that context. As the Minister responsible for the Office for National Statistics, I did not answer those particular parliamentary questions for the national statistician, but I did answer those that were a matter of statistics policy.
My right hon. Friend says that that is an illuminating comparison, as it is, in some ways. Planning policy would remain a matter for Ministers, although the accountability and explanation of the IPC’s work and decisions would be a matter for itself, in operational terms.

Bob Neill: With all respect to the Minister and to the right hon. Gentleman, is there not a world of difference, to the people concerned, between a decision about statistics policy and a decision to put a nuclear power station in their neighbourhood? That is really what it comes down to at the end of the day.

John Healey: Of course there is, but at the moment we are trying to test out, within the established procedures of the House, what the House could decide to do, within the framework of the proposals we make relating to the Bill, to hold this important body to account to explain the very important decisions that we are charging it to make. Of course there is a world of difference. I do not use the comparison in any way to belittle the importance of what we are discussing. I am trying to cast some light on what may be possible. I hope that the hon. Gentleman can accept that. I see him nodding, and I am grateful to him for that.

Alun Michael: Opposition Members should be careful about belittling the importance of that matter. The suggestion made by Conservative members of the Statistics and Registration Service Bill Committee when we were debating the independence and the processes was that it was pretty nuclear in terms of its importance.

John Healey: My right hon. Friend is right in his recollection of the rather odd and slightly inconsistent approach taken, not by Conservative members of this Committee, but by some of their colleagues.

Bob Neill: I appreciate the serious intent with which the Minister raises the matter, but may I make one final point for him to take on board? Occasionally a Secretary of State will come to a decision that is different from the recommendation of the inspector. That may be the courageous thing to do, as the right hon. Gentleman said. But the whole point is that it is very clear to the public that the Secretary of State has done that. The public might well conclude that it was a pretty tight decision under those circumstances. I do not criticise a Minister who does that, but it is there, it is on the record and it is very accountable.
If it is within the IPC and it is dealt with by the panel or by an individual commissioner, how do we know whether the commissioner decided to go against certain technical or expert advice that he had in-house? If it is a decision of the panel, how do we know whether the chairman of the panel dealt with it on his casting vote or something like that? It is not a small thing. If people can review the decision, see that it was tight and that the Secretary of State chose, perhaps bravely, to go down a different route and can be questioned about that here in this House, albeit that it is subject to the rules of being quasi-judicial, is that not a significant difference in transparency? How, if the Minister is right, will we achieve a similar degree of transparency about the decisions and the reasoning processes of the IPC ?

John Healey: I am glad that we are moving off the question of statistics. I hoped I had left that behind when I left the Treasury.

John Butterfill: So did I.

John Healey: We are both suffering from a blast from the past.
I do not accept that there is a difference in principle between a decision that a Secretary of State may take in a planning case where they happen to agree with the inspector, and a decision where they disagree. The important question the hon. Gentleman was posing was how open and how clear will the process of making the decision that the IPC undertakes be, and how clear will it have to be about the reasons for the decisions that it comes to. We come on in part 6 to the process of considering applications and making decisions. On the question of being clear about the reasons, the IPC will be required to publish an explanation of the decisions it reaches, and its reasons for doing so. That will give those with an interest plenty of opportunity to understand the IPC’s stance.

Jeff Ennis: Just to add my two penn’orth on this point, the main difference with the Secretary of State’s involvement under the new model, with the involvement of the IPC in major planning decisions, is that it will be front-loaded through the national policy statements. He will set the framework within which the IPC must work. Not only that, but under clause 6 it will be incumbent on him to review the overall policy contained in the national policy statement at regular intervals. There is therefore a check and balance for the Secretary of State to ensure that the IPC is conforming to the model that he has laid down in the national policy statement.

John Healey: My hon. Friend is right. The national policy statement framework within which the IPC will make decisions, which we have set out, will be very different to the regime within which the Secretary of State and the planning inspector currently operate. That is recognised on both sides of the Committee as an important element of the new system and it creates a different basis upon which decisions will be taken.
As my hon. Friend quite rightly said, there is not just a front-loading of ministerial involvement. There is a significant strengthening and front-loading of parliamentary involvement because of the role that Parliament will play in developing national policy statements.
I turn to some of the substantive points that my hon. Friend the Member for Sheffield, Attercliffe and others have raised. There was a question over whether Secretaries of State will be left, as they are now, to make decisions on certain smaller projects, but not larger ones. It is precisely because these projects are bigger and nationally more significant that the current system is not up to dealing with them. It is because of that that we believe that we need a new system together with the IPC. I will come on to some of the reasons for the IPC in a moment. It is because there are relatively few nationally significant infrastructure projects and because they are reasonably predictable that we can be confident that we can set out clear, detailed national policy statements to cover them.
Nationally significant infrastructure projects are different from commercial developments and large-scale housing developments, which the Planning Inspectorate and the current Town and Country Planning Act regime will continue to deal with. There is a substantive difference with the few, more predictable national projects that we envisage, for which we can set out national policy statement frameworks within which decisions should be taken and which Parliament will have a very strong role in developing.
In setting out the national policy statements, we can do what my hon. Friend the Member for Barnsley, East and Mexborough mentioned and set out the basis for separating policy making from decision making. Policy making is properly the province of Ministers, along with Parliament. Decision making is an area for an independent, expert panel through the commission.
Those projects that will still be dealt with under the current regime, such as commercial housing developments, which are exercising my hon. Friend the Member for Sheffield, Attercliffe, come in all shapes and sizes and vary considerably, as the collected experience from all of our constituencies would demonstrate. They are much more difficult to capture in the new framework. It is more difficult to set out detailed policy statements that cover all such cases. That means that the Secretary of State might occasionally need to call in certain cases due to an exceptional set of circumstances or because policy issues are raised that require a decision for clarification.
In our view, there is a good reason why there should be a distinction between bigger projects and smaller ones. Rather than the latter undermining the case for the former, that distinction allows us to make the proposals to treat them differently.
I hesitate in some ways, Sir John, because I have already gone over the principal benefits that we believe will come from an independent IPC. I have stated them in some detail in giving evidence and in the scrutiny part of the Committee stage. Suffice it to say that in summary, the benefits are three-fold. We believe that the IPC will increase the speed and efficiency of decision making.

Clive Betts: I have trouble listening to what my hon. Friend is saying, particularly about the greater certainty that the policy statements will give to the commission when it looks at individual projects. Can he foresee any circumstances in which the policy statement might not be absolutely comprehensive? For example, there might be gaps in it whereby the commission would have to arrive at an interpretation of policy if there is a dispute between the parties about what the policy is. Does he see the danger that, under those circumstances, we could end up with a situation where policy is made by the commission without any review of that decision by the Secretary of State?

John Healey: The intention of the system is clear. Policy making is rightfully for Ministers together with Parliament. The Bill specifically provides for circumstances where the policy is deficient, either because it does not cover the required areas or because it is out of date. The second principle benefit of the IPC is the belief that it will improve the quality of the decisions taken. Thirdly, it will improve clarity and transparency within a system that currently, and my hon. Friend dwelt on this, could include a situation where the same Secretary of State is responsible for policy, interested in the promotion of particular applications and is ultimately the decision taking authority. It is likely to be less a matter for the Secretary of the State of my own Department, and more common in the areas of transport.
I return to the question at the heart of my hon. Friend’s concerns—that of how the IPC will be accountable. I will try to set out a number of ways in which that will be the case and I hope that he will reflect on them and feel reassured. First, the IPC will always, and only, operate within the legislative framework set by Parliament, and within the policy framework set out by Ministers and scrutinised by Parliament in the national policy statements. As I have said, it will be required to give reasons for any decisions that it takes, and it will account to Ministers and to Parliament for its performance and for those decisions. The commission’s annual reports will be available to Parliament via Ministers.
We have suggested a special Select Committee to deal with national policy statements and elements of the new system, and it will be able to call the chair of the commission to give evidence before it—something that I am sure all members of the Committee expect to happen. The commission will be subject to freedom of information provisions and, in the case of maladministration, to the parliamentary commissioner for administration. Ultimately, the Secretary of State can remove a commissioner from office if he or she is satisfied that the circumstances meet the criteria set out in the Bill.
The second group of amendments deals with the IPC’s powers to apply, modify or exclude legislative provisions. Perhaps I could first attempt to reassure the Committee that this is not a swingeing new power to amend the legislation. It is a narrow and confined area of competence for the IPC. The sorts of primary legislation that we envisage the IPC will need to discharge its primary function of allowing the development consent are Private Acts of Parliament in relation to transport projects, many of which, as hon. Members will know, date from the 19th century. There will also be some byways and other provisions.
I appreciate that this is a controversial area. As it underpins some of our later deliberations as well as these amendments, I would like to try to demonstrate why the IPC needs these powers and emphasise the safeguards that are in place to ensure that they are used appropriately. We believe that putting the IPC in charge, not just of examining applications, but of the decisions that are essential to speeding up the process on national infrastructure projects, will improve the quality of those decisions and make the system clearer and more transparent. Those points lie at the heart of our proposals.
The problem is that the sorts of infrastructure projects that we are talking about are different from many other sorts of projects. Particularly with railways and ports, alterations to existing infrastructure—often built under the authorisation of Local Acts of Parliament in the 19th century and sometimes earlier—cannot be made without minor changes to existing legislation. As soon as anyone starts to develop or plan the concepts, they run up against the statutory provisions that regulate the existing infrastructure and would not permit those works to take place. Almost from the word go, questions about minor amendments to legislation are integrally bound up with the preparation and consideration of any planning projects for major infrastructure. That is particularly clear with railway infrastructure, where no alterations can be made to such infrastructure and therefore no further projects can be built on such land, unless the original Acts of Parliament are changed.
It is precisely because of that problem that under the previous Government, Parliament recognised and granted the Secretary of State powers under section 5 of the Transport and Works Act 1992, which included the ability to make an order that can apply, modify or exclude any statutory provision relating to any matter on which an order could be made under that Act. The Act also permitted the Secretary of State to make amendments, appeals or revocations of statutory provisions of local application, as appeared to him or her as expedient in connection with an order. In clause 105(6), which is at the heart of the provision, we have used wording that is closely modelled on the Transport and Works Act—it is not something that we have created specifically for the IPC. If we do not give the IPC these powers it simply will not be able to deal with projects, such as railways and ports, that cannot be built without making minor amendments to existing legislation.
I understand the argument of some hon. Members that we should treat those cases as a special case and have the IPC report them and its consideration of applications to Ministers, but I hope that hon. Members will accept that were we to do that, we would be back where we started. We would lose the advantages of the single consent regime and the potential benefits that lie in creating the IPC and giving it this decision-making role. We would have a functionally separate process for the consideration of the application and for the derivative legislative changes and we would have separate responsibilities for those two areas. In other words, we would not have an independent planning commission, but an extension of Ministers. That would not speed up the decision-making process because we would have the same two-stage process with two separate bodies going over much of the same ground, separately and sequentially. We would not get improved decisions because the commission would be just a reporting body to Ministers; a sort of souped-up Planning Inspectorate. Finally, we would not have greater clarity regarding roles and responsibilities because Ministers would be setting policy and still taking decisions to deliver it.

Bob Neill: I do not understand how what the Minister has just said about delay and undermining the IPC fits with his earlier observation that the power to amend or disapply legislation is narrow and confined. If it is narrow and confined, it is likely to be used in a very discrete set of circumstances. I do not see how either two parallel structures or inordinate delay will be created. If Ministers are efficient and it is simply a question of a recommendation being made to them, that is not unscrambling the whole of the IPC. I hope that he does not misunderstand that, and I should like to know the basis for his suggestion. Surely, Ministers can come to a swift decision on a narrow and discrete, but important, constitutionally sensitive point.

John Healey: I repeat that the IPC will absolutely have a narrow, confined and well specified competence within which to exercise the powers. I am tackling the proposition in the amendments that when there are to be primary legislative changes as a result of an application, the application and the changes should automatically be referred to the Secretary of State for decision. That would be a two-stage process, with two bodies going over the same ground and losing the greater efficiency, speed and certainty of the decision-making process.
We are back where we started. I said that I would spell out some of the safeguards that I hope will reassure hon. Members. The use of the IPC’s legislative modification powers must be contained within an application for a particular infrastructure project. The application must be in the form of an order that has been drafted according to model provisions in the Bill and must be in accordance with the national policy statement. The draft order must be submitted to the Secretary of State, who may demand changes if the modifications would contravene European Union or human rights legislation.
Given those reassurances and comments, I hope that hon. Members feel that we have had a good, important debate and will not press their amendments to votes. If they do, I urge my hon. Friends to resist.

Clive Betts: I thank my hon. Friend for thoroughly addressing the issues that I and other hon. Members have raised, and for doing so in his usual helpful and thorough fashion. However, he has reassured me only partially, because his explanation about the IPC’s accountability is that it will be partially accountable. I am not convinced that it will have the same accountability for its decisions as the Secretary of State would have.
I understand that Ministers’ recommendations and parliamentary votes will determine the national policy statements within which the IPC must operate, but I would be happier if the Secretary of State were to oversee that that is properly done on an individual application. I am still struggling with the fundamental reason why having the Secretary of State as the final arbiter would cause a considerable problem, and I am not fully reassured on that. I shall not press my amendment to a vote, but I think that we will have to return to this on Report, because it is a big issue, and I expect that other hon. Members will want to enter the debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bob Neill: I heard what the hon. Gentleman said. I hope that I am keeping myself in order, but at an appropriate point I would seek to press our amendment No. 206.

John Butterfill: Indeed. I was about to say that a large number of the amendments that were grouped with amendment No. 391 will come up later in relation to other clauses. If Opposition Members wish to press any of them to a Division, it would be helpful if they let me or the Clerk know. It should probably be the Clerk, as I may not always be in the Chair—it could be my co-Chairman. If you would let the Clerk know which amendments you wish, at the appropriate time, to press to a Division, that would be entirely in order.

Bob Neill: I am grateful, Sir John. I have given that indication and will be content to be guided as to when we can register a vote on the matter.

John Butterfill: Indeed.

Bob Neill: I beg to move amendment No. 227, in clause 32, page 16, line 31, at end insert—
‘(e) be accompanied by evidence that the applicant has taken all reasonable steps to secure conformity with the Local Development Framework policies of the affected local planning authority and where applicants have departed from local policy, an explanation for any such departure.’.
I shall endeavour to be concise. The amendment deals with a separate issue, but it and amendment No. 201, although separately listed, are in large measure linked. We are concerned to ensure proper and appropriate consistency in the handling of applications. In addition to the requirements and specifications that are already listed in clause 32(3), we seek to add, via a new paragraph (e),
“evidence that the applicant has taken all reasonable steps to secure conformity with the Local Development Framework policies”,
and, if the applicant has departed from that, an explanation for any such departure.
That is consistent with the Government’s approach of seeking to front load as much as possible, so that issues of controversy and debate are flagged up at the earliest possible stage. Several witnesses raised with us in various ways their concerns about how the national policy statements regime and the way in which statements are handled will or will not satisfactorily interface with existing policy documents and frameworks. We seek to clarify that at an early stage by requiring the applicant to say whether he can comply and, if not, set out his reasons.
I understand why there may be a departure from that for a major piece of infrastructure, but it is far better to have it flagged up in advance so that it can be effectively dealt with in the pre-application hearings, which we will discuss later. I hope the Minister accepts that the amendment will strengthen the working of the Bill and that he will respond favourably to it.

John Healey: I had regarded the amendment as over-prescriptive. I had not quite understood it, but I think I now divine the hon. Gentleman’s underlying concern. It seems to be to ensure that controversies and local views are, to use his words, flagged up early and, ideally, in advance of the application process.
The amendment is over-prescriptive principally for this reason. Once a national policy statement is established, it should, of course, be reflected in relevant local development frameworks or regional spatial strategies. However, the hon. Gentleman will know well, given his experience, that local development frameworks do not necessarily respond immediately, and such a framework may not have the opportunity to reflect and take into account the provisions of a national policy statement. Instead—this deals with his underlying concerns rather than meeting the terms of his amendment—the Bill requires any promoter to consult local authorities that will be affected by the proposals and to have regard to their views. During that consultation process, local authorities will be able to raise all relevant local concerns and controversies, enabling the promoters to take account of their views early and in advance of the application process. That will enable applications to be better prepared before being submitted. The Bill allows local authorities to bring up relevant concerns both at the pre-application stage and during the inquiry phases.
I hope that the hon. Gentleman will accept that his concerns are met by provisions and that the terms in which he proposes the amendment may be too prescriptive and not help his cause.

Bob Neill: I am grateful to the Minister for setting out the position clearly. I am grateful to have that on the record, and against that background I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bob Neill: I beg to move amendment No. 201, in clause 32, page 17, line 5, leave out ‘section 42(5)’ and insert ‘sections 37, 42 and 43’.
The good news is that this will be the last that hon. Members hear from me—for a little time, at any rate. The amendment follows on from the principle that I referred to, which is about embracing the Government’s argument about front-loading as much of the work as possible. We are seeking to enhance the consultation and publicity at the early stage of the application. The amendment would extend the scope of the consultation report that is required to be provided to consultation under clause 37 and to publicity under clause 43, as well as what is in clause 42, which can broadly be referred to as the community consultation element. We do not have a problem with that. It seems sensible that there should be early community consultation, and to a high and robust standard—I think that that is the phrase that the CBI used in its evidence. However, we think it appropriate that the report that sets out how that has been gone about should embrace all the elements of consultation that have to take place. That would include the local authorities under clause 37 and the way in which publicity has been gone about under clause 43.
We are seeking to make the consultation report more comprehensive at that early stage. That seems sensible. Again, it would be likely to concentrate the minds of applicants and would ensure consistency. It certainly appears to be consistent with, for example, the approach adopted in clause 49(5), to which our explanatory statement refers. There is a desire on our part to seek clarity early on. That would add to the efficiency that I hope we and the Government want to achieve, even if we might sometimes disagree about the means.

John Healey: We wanted to give special weight to the consultation under clause 42, rather than spreading the importance of it more widely. That is why clause 42 requires that a statement be drawn up setting out how the applicant proposes to consult the local community—a statement on which local authorities must be consulted—and provides for it to benefit from guidance from both the commission and the Secretary of State as to what should be in it.
However—this deals with the hon. Gentleman’s wider concerns—the applicant must have regard to responses to the consultation and publicity under all three provisions to which his amendment refers. Similarly, the commission must have regard to the adequacy of the consultation representation made by a local authority consultee as part of the evidence and information that it has towards the end of the pre-application process. I hope that that gives him sufficient reassurance.

Bob Neill: As ever, I am grateful to the Minister, particularly for the spirit in which he approached that, and do not think that there is any difference between us with regard to intent. We will come to issues such as the model guidelines in due course and I hope that we can build in the appropriate safeguards, without making them too prescriptive, to ensure that those matters are ticked off. Against that background, I will not seek to press the amendment to a vote and am grateful once more to have the Minister’s assurance on the record. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 ordered to stand part of the Bill.

Clause 33 ordered to stand part of the Bill.

Clause 34

Register of applications

John Healey: I beg to move amendment No. 356, in clause 34, page 17, line 32, after ‘consent,’ insert—
‘(aa) consultation reports received by the Commission under section 32(3)(c),’.
Clause 34 requires the commission to maintain a register of applications for orders granting development consent and publish that register or make arrangements for its inspection by members of the public. As currently drafted, the clause requires the commission also to make applications received available for public inspection, along with any accompanying documents and information. That will ensure that the pre-application stage is transparent and open to everyone involved or interested.
The amendment will add the pre-application consultation reports to those documents that must be available for public inspection. As we said, those reports are referred to in clause 32(7) and, in short, cover the consultation carried out for a proposed application, the subsequent results and also the account that has been taken of the consultation’s results.
Overall, I hope that hon. Members will agree that that adds to the openness and transparency of the process. It ought to be a welcome amendment, and I hope that it will be.

Amendment agreed to.

Clause 34, as amended, ordered to stand part of the Bill.

Clause 35

Applications by the Crown for orders granting development consent

Question proposed, That the clause stand part of the Bill.

John Butterfill: With this is will be convenient to discuss amendment No. 261, in clause 173, page 97, line 20, leave out ‘35’.

Bob Neill: I spoke too soon, as I had forgotten about amendment No. 261 and apologise for disappointing hon. Members. I shall try to make up for it by being brief.
The purpose of the amendment is to tease out from the Minister a little more of the reasoning behind setting up a special regime to apply to the Crown in relation to the applications under clause 35, as it is not entirely clear to us. We appreciate that the Crown occasionally has difficult situations, but would like some explanations for that special procedure. Under what circumstances will applications be made by the Crown, and what kind of difficulties could arise as a result of the Crown being subject to the law?

Daniel Rogerson: Although my amendment to delete the clause will not be considered, I would like to explore this clause further. The hon. Member for Bromley and Chislehurst quite rightly said that we need to explore the circumstances in which the Government may depart from the provisions that everyone else in the country has to conform to.
Also, will the Minister define what is meant by Crown land? Does it include, for example, Duchy of Lancaster land or, in the case of my own constituency, Duchy of Cornwall land, because that land serves a different purpose from Crown land, which is used for purposes on behalf of Government and the nation as a whole? I would be interested to have some clarification of exactly what is covered by this measure. I hope that the Minister can see the distinction that I am making about estates in which the primary purpose is to raise revenue for particular members of the royal family.
The hon. Member for Sheffield, Attercliffe, whose amendment prompted the debate on clause 32, referred to the potential conflict of interest in the Secretary of State determining applications. He saw that as a potential criticism of his own argument. Here, we could have the conflict of interest above all others if the Government are able to impose particular strictures upon anyone else who applies to construct a development. They could completely disregard the applicant for their own ends. It would be helpful for us to hear from the Minister how often he thinks that such action would be appropriate. Even if he is able to clarify the matter, I am a little uneasy with the whole concept. I think that members of the public and people in industry who are forced to live by the Bill would feel aggrieved if the Crown were able to sidestep the regulations that are imposed on everybody else. I will be interested to hear what the Minister has to say.

John Healey: I shall do my best. I would say to the hon. Member for North Cornwall that it is quite unlikely that the Duchy of Cornwall or the royal family would want to promote a nationally significant infrastructure project on their land.

Daniel Rogerson: Just as the Minister is getting going—I am aware that the Lord Commissioner of Her Majesty's Treasury, the hon. Member for St. Helens, North, will be raising his eyes about the progress that we are making—I would like to mention that there are significant plans for housing developments on land owned by the Duchy of Cornwall, which may have complicated implications for infrastructure projects. That is the circumstance that I foresee. Obviously, we also want to hear what the Minister thinks is appropriate on the wider issue of Crown lands.

John Healey: The hon. Gentleman must appreciate that this regime does not cover housing. We have already dealt in some detail with the criteria that qualify an application for a project. This is principally about Crown applications for Government projects, such as highway projects in which the Highways Agency would be the promoter. The measure is designed to be a fall-back provision that is used in special circumstance. Hon. Members will recognise that occasionally domestic or international circumstance require the Government to be able to act quickly in response to events that by their nature are unpredictable and may not be capable of being captured and set out in a national policy statement. Without the power set out in the clause, the Government would not be able to respond.
Let me give an example. The foot and mouth crisis required the urgent provision of infrastructure in order to deal with the large quantities of animal waste that resulted from the necessary culling that took place. The provision is designed to deal with that sort of circumstance.
The regulations we propose would be subject to the negative procedure in the House and would, therefore, be subject to an annulment resolution of either House. It is an important power that we are only likely to consider using in special circumstances and occasionally. I hope that that explanation gives hon. Members some reassurance.

Bob Neill: I will not make any cracks about Duchy Original wind farms or anything of that kind. I understand the Minister’s point and I will not seek to press the amendment.

Question put and agreed to.

Clause 35 ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Jacqui Lait: On a point of order, Sir John. Before I launch into moving the amendment, I seek your guidance on a matter that I raised at the beginning of this morning’s sitting. The Minister kindly indicated to us that he was hoping to get the consultation on the community infrastructure levy out in plenty of time for organisations and ourselves to be able to consider amendments. I now understand that it will be next week before that consultation goes out, which makes it exceedingly tight for us to be able to get advice from the bodies that are most directly concerned and to table amendments, particularly if we were to be able to move on to consideration of that next Friday. Could you give us some guidance as to how we could cope with that situation, so that we can have a proper debate on the levy?

John Butterfill: That is not a point of order for me, but the Minister may wish to comment on it.

John Healey: I thought that I made my intention clear this morning. I said that we would get the consultation out, that it would not be, as the hon. Lady mistakenly argued this morning, about consultation on the draft regulations, but it would be a consultation that set out more fully our approach to developing the community infrastructure levy. We aim to do that in good time for the debate in the Committee and that remains my intention.

Clause 37

Duty to consult

Jacqui Lait: I beg to move amendment No. 11, in clause 37, page 18, line 17, at end insert
‘and who must include residents affected by the proposed application’.

John Butterfill: With this it will be convenient to discuss the following amendments: No. 12, in clause 37, page 18, line 22, leave out ‘may’ and insert ‘shall’.
No. 168, in clause 38, page 18, line 39, leave out ‘or’.
No. 169, in clause 38, page 19, line 2, at end add—
‘(h) a parish council,
(i) a community council in Wales, or
(j) a community council in Scotland.’.
No. 63, in clause 42, page 20, line 8, at end add
‘and those who might be significantly affected by the development’.
Government amendments Nos. 357 to 359
No. 174, in clause 42, page 20, line 21, leave out subsection (5) and insert—
‘(5) The Commission must commission an independent third party (“third party”) to undertake such community engagement in relation to an application for development as the relevant local planning authority considers appropriate within a set period (“the community engagement period”) of not more than six months.
(6) The third party shall be required to publish a report (“the community engagement report”) on its work within 14 days of the end of the community engagement period.
(7) The community engagement report will publish responses from interested parties, including but not limited to those defined as Categories 1, 2 and 3 in section 39.
(8) The applicant must within three months of the publication of the community engagement report publish a response to indicate its intentions to change the application.
(9) The application for development consent may not make progress until such time as the applicant has complied with subsection (8).
(10) If the applicant has not complied with subsection (8) after a period of six months the application shall be deemed to be withdrawn.’.
No. 15, in clause 50, page 25, line 29, at end insert
‘and who must include persons consulted under section 37(1)(a)’.
No. 297, in clause 80, page 37, line 30, leave out ‘and’.
No. 298, in clause 80, page 37, line 31, at end insert—
‘(c) an independent third party (“the third party”) who shall undertake community engagement as set out in subsection (7), and
(d) senior officers and councillors of the relevant local planning authorities,’.
No. 321, in clause 92, page 42, line 21, leave out ‘or’.
No. 322, in clause 92, page 42, line 22, at end insert—
‘(f) the person is a relevant parish council,
(g) the person is a relevant community council in Wales, or
(h) the person is a relevant community council in Scotland.’.
No. 279, in clause 92, page 43, line 9, at end insert—
‘(ea) a parish or town council in England, or a community council in Wales,’.

Jacqui Lait: I rise to move our amendments Nos. 11, 12 , 15 and 279. I think that there is general agreement for all the amendments that we must get the categories of people who are consulted—

John Butterfill: Order. The hon. Lady can speak to the other amendments, but at this stage she can only move amendment No. 11.

Jacqui Lait: I am sorry. That was a procedural mistake and I thank you for your guidance, Sir John. I will, indeed, speak to amendment No. 11, which sets the tone for all the amendments in the group. They are all to do with trying to get the pre-inquiry consultation, and the people who need to be consulted, correct.
There is concern, across a broad front, that the lists in the clause are tight. They mention various organisations and people. I assume that, where the Bill mentions “persons”, it means that people are able to represent the organisations. However crucial the contribution made by organisations to the development of the national policy statement, if they have a particular interest in an area, they will probably tie the IPC in knots by demanding the right to represent their views on a particular application because of their detailed interest in it.
We see the practice emerging of developers realising the importance of good consultation before putting in an application. Frankly, they recognise that sorting out the problems before putting in an application has the benefit that it will go through much more speedily. We strongly support pre-inquiry consultation because it is a key element in speeding up planning inquiries, whether it goes through the IPC or through our preferred route of an improved Planning Inspectorate. It is therefore crucial that the right people are consulted, and that includes all who feel that they have a legitimate point to make.
In amendment No. 11, we suggest adding to clause 37 the words
“residents affected by the proposed application”.
However, as I understand it, clause 39 confines those who must be consulted to the owners, lessees, tenants or occupiers of the land, or persons who are “interested” in the land or who have the power to sell, convey or release it. My reading of a person who is interested in the land, coupled with the phrase “has power...to sell”, implies that it is someone with a direct interest in the land, and not necessarily a person who is concerned about the development of the land and its impact on their community.
If my interpretation is right—I hope that the Minister will assure me that I am wrong—it could, for instance, mean that someone whose property was not necessarily contiguous with the property being developed but who happened to live in the village and who had a problem with sight lines, or one of the many other of the complaints frequently made under the planning system, could be ruled out from making a complaint or from applying to be represented.
Because pre-inquiry consultation is improving, I want to be assured that organisations that represent people with a direct interest can continue to insist on being consulted. I have in mind evidence from the Wildlife Trust, which I am sure other hon. Members have received, particularly about electricity cables in Kent. Because the trust was consulted by the developer before the inquiry, it was able to resolve many of the issues, some to do with the habitats directive and especially the habitat of the marsh harrier, and a number of other clear and direct matters that were of benefit to the environment. That was done under the auspices of a formal group. In the spirit of getting the pre-inquiry consultation right, I would not want such organisations to be unable to represent local residents and local interests merely because they were not regarded as having a direct interest. With that, you will be relieved to hear, Sir John, I have covered all the ground that I need to on the amendments.

Elfyn Llwyd: I rise not only to support amendment No. 11, but to speak to amendment No. 63, which I tabled. Although that amendment nominally address clause 42, it is along precisely the same lines as amendment No. 11 to clause 37, which is on the duty to consult.
As the hon. Lady rightly said, it appears from clause 39 that those who will be consulted will have a proprietary interest in the land. Under clause 39(2), they will either be a person “interested in the land” or someone who has
“power...to sell and convey the land, or...to release the land.”
That is far too prescriptive. I would therefore like us to add the words
“and those who might be significantly affected by the development”.
The wording of my amendment is not fanciful. If we look at clause 13 and the various examples of nationally significant infrastructure projects, we see that we have at least 12 or 13 bad neighbours. The clause refers to the construction of waste treatment plants, hazardous waste facilities, railways, which can be intrusive, highways and pipelines, as well as to the extension of airports—we all know about those—and the underground storage of gas. Indeed, some large gas pipelines are currently being sent through south Wales and are causing grave concern in many communities throughout the area. However, I am thinking more of airports. Sticking strictly to the proprietary interest line that a person must be interested in the land contiguous to the development tends to miss the point. Those who can be badly affected by airport extensions can live miles away from the land that is being developed.
That is why I think that the Bill should be amended. My amendment is along the same lines as the hon. Lady’s, with which I do not disagree. We are both aiming at the same end product—a thorough inquiry that places an obligation on the IPC to consult properly all those who might be badly or substantially affected. That is the very least that we should be aiming for in this aspect of the Bill.

Daniel Rogerson: The amendments that I tabled fall into two groups. Amendments Nos. 168, 169, 321 and 322 refer to the inclusion of parish councils or their equivalent in the provisions. I might have been over-zealous in my reference to community councils in Scotland, given that their appearance in later amendments makes that superfluous. However, it is important that parish councils are included in the process.
There are 70 parish councils in my constituency, all of which very much enjoy their role as statutory consultees on planning applications—[Interruption.] I think that some hon. Members are surprised that there are 70 in my constituency, but I try to get to as many of them as I can. They take their role in planning applications seriously, and they quite often dispute with the district council whether their views have been taken into account. At that point, anyone who has chosen to attend the public gallery of a parish council meeting gets very interested. We should reflect on that fact.
Parish councils would be a useful addition to this and later parts of the Bill. They provide an excellent forum for ensuring that information about a proposed development is filtered out into the community and that those views are reflected back. I hope that the Minister will be able to accept that they ought to be added and that they are missing from the Bill. If he feels that my amendments are not elegant enough, perhaps he will undertake to examine at the issue and return to us later.
My second point relates to an issue that concerns me a little: developers being asked to undertake consultation. The most important thing about consultation is that it should be meaningful. As it is part of the speeding up the process, anything that happens at the pre-application stage will later be relied on for evidence, if the application is considered. Let us take the example of a community that feels aggrieved about something on which the IPC is due to make a decision. The local people might feel that the consultation undertaken by the applicant at the pre-application stage, or someone appointed by the applicant, does not entirely reflect their views. While the IPC will no doubt want to hear that that evidence is robust and that the consultation has taken place properly, amendments Nos. 174, 297 and 298 would provide for the employment of a third party to undertake that consultation. The third party would be appointed by the IPC, although the charge would fall upon the applicant.
No doubt the Minister will say that it would not be right for the IPC to get involved in such a way prior to the application. However, that would be a way in which we could guarantee that the important pre-application consultation, which seeks to improve applications and overcome one of the factors that can delay them, is robust and not just fair, but seen to be fair by those in the community concerned. I hope that the Minister will consider the amendments and tell us how the Government feel these points can be taken into account.

John Healey: I do not think that there is any significant difference in our objective of having the most effective and thorough pre-application consultation and ensuring that those who may be affected or who have an interest are included in that process. All hon. Members would recognise that the consultation at the pre-application stage is one of the cornerstones of the Bill. It is a new requirement, as witnesses at our evidence sessions confirmed. It will put a new requirement on project promoters that will lead to better applications and new opportunities for local communities, local residents and others to put forward their views. It will be an opportunity not just to put forward views, but to influence the development of a promoter’s proposal. Indeed, there is the example of local residents working with the Wildlife Trust in Kent. Once the application was submitted, it went through a process like this and was vastly improved.
Amendments Nos. 11 and 63 are not necessary to achieve the aims of the hon. Lady and the hon. Member for North Cornwall. Taken as a whole, the provisions in part 5 already set a strong requirement to consult local communities and the people affected. Clauses 42 to 44 will require the promoter to prepare a statement setting out how the local community will be consulted, to publicise that statement in the relevant area, and to carry out the consultation in accordance with the statement. It will also require them to publicise a proposed application locally and to take account of responses to the consultation.
Clauses 37 and 39 have a different and more specific purpose. They will require consultation with anyone with an interest in the land, anyone who might be entitled to a compensation claim, even under the Compulsory Purchase Act 1965 or the Land Compensation Act 1973, and those who may be entitled to a claim for nuisance. The measure applies to owners, lessees, tenants, occupiers of land, and other parties with such interests. In addition, other statutory consultees can be specified—there is provision to do so under regulations. That answers the hon. Gentleman, but we will consider the points he raised. I have already invited the Committee to make suggestions about what we should consider under the process. We will use the regulations to specify consultees after proper and widespread consultation.
That also answers the hon. Member for Bromley and Chislehurst, who asked about the position of harbour authorities during a debate on part 3 of the Bill. Of course, they come into precisely the category that I am talking about. We would consider their position under the power I described.

Elfyn Llwyd: Clause 39(5)(c) is about persons who might have “a claim for nuisance.” Will that category catch those whom I described as being significantly affected by a development? For example, will it catch a person who lives two miles away from a new runway? Would they come within the ambit of the measure? It would be encouraging if they did.

John Healey: I cannot say that such people will necessarily be caught by the measure because I cannot anticipate what circumstances will arise. However, the general provision for the consultation requirements of a promoter in the local area and community are likely to encompass the sort of people whom the hon. Gentleman has in mind. To be honest, it is difficult to think of people who should be consulted who are not covered by the proposals as they stand. Local people, those who have a direct interest and those whose interests could be affected are covered.
I have addressed the question of parish and community-level councils but, in summary, the strong duty to consult the local community at the pre-application stage is set out in this part of the Bill. I have covered hon. Members concerns. In addition, when a person makes a written representation on a particular application, they will automatically become an interested party under clause 92.
Finally, the hon. Member for North Cornwall proposed third party intervention. Specifying the requirements and responsibilities on the promoter, giving them the principal responsibility to undertake those effectively, and giving ourselves the capability to elaborate on them later represents the better approach and the right one. The responsibility should properly sit with the promoter.

Daniel Rogerson: Let me give an example. There is an application to build a wind farm in my constituency—I have heard of similar things happening in north-east Wales. The local residents who are opposed to the scheme are a little suspicious of the pre-application consultation that is being carried out by the developer. That consultation is pretty much following the provisions set out in the Bill by taking over church halls in the parish to put on displays and so on. The local residents feel that the developer has all of the resources at its disposal and that the conclusions that appear on the website do not reflect the points that they have seen fit to put across, not least by standing outside and giving alternative views on what form the development might take and how it might affect the area. The issue is whether people see the consultation as being biased because it is the developer that undertakes it.

John Healey: I understand that point, but we are setting out a framework that will require certain things to be undertaken by any promoter during consultation. The commission must be satisfied that the promoter has complied with their duty of consultation before it can accept the application. It must also have regard to the representations that the local authority makes, specifically about how adequate the consultation has been. The circumstances in which the pre-application consultation will take place will be clearly specified and there will be significant requirements on the promoter.
The responsibility must rest with the promoter to undertake the consultation and we all want to ensure that promoters do it in certain ways. Under the Bill, the commission must be satisfied that that has been done properly before it even accepts the application for subsequent consideration.

Daniel Rogerson: In the example that I gave, a crucial point for those who oppose the development is not that the consultation has not taken place. They do not dispute that it has. Their concern is how the evidence will be reported back to the commission. I am not clear about how the commission can determine whether the information that is presented to it is a fair reflection of the consultation that has taken place. For example, there is no representative of the commission in the church hall while it is going on and there is no one to say what members of the public did or did not say while looking at the displays. The concern I have is that the developer will be able to present the picture that it has talked to people in the local community and that they are happy with the project, subject to one or two changes, when that is not a fair reflection of what went on at the public meeting.

John Healey: I have touched on this point, but the commission will have the scope to set standards and requirements on the pre-application process in addition to what is specified in the Bill. It is obliged to make an assessment of the extent to which that has been carried out. The local authority is in a formal position to file a report and make representations on the adequacy of the consultation. I hope that the hon. Gentleman feels that this process will create greater confidence and help to create better applications. The application might not be entirely accepted by local interests, but it will be a better application as a result of the consultation.

Jacqui Lait: I am grateful to the Minister for his assurances on amendment No. 169 on parish and community councils. We tabled a similar amendment and look forward to those bodies being included in the list of the statutory consultees.
I am grateful, too, for the Minister’s explanation of his reading of how the clause relates to the amendment. I am therefore unlikely to press it to a vote, but I was interested that he did not refer to Government amendments Nos. 357 to 359. I was waiting to hear him speak about them and I deliberately did not refer to them. If I read them correctly, those amendments will require the local authority to reply to a consultation within 28 days of the date that it is received. A serious consultation will take much longer. In due course, we will come to how I envisage such a consultation being conducted.
With regard to the example cited by the hon. Member for North Cornwall, I imagine that local people would feel most aggrieved about a wind farm application if they had only 28 days in which to be consulted and to make their views known about its impact on them singly, collectively, as a community, as residents, as activists or as people whose land is contiguous to the development. With the best will in the world, it would take them considerably longer than 28 days to get legal advice about their powers and responsibilities and about the impact a planning application for a wind farm might have on them or their neighbours.
I want the Minister to enlighten us on the thinking behind the 28 days’ limit for the local authority, because it entirely ignores the speed at which local authorities progress, as even setting up a committee for a local authority to consider an application takes longer than 28 days. If an officer’s authorisation is required to confirm that the consultation is adequate, aggrieved councillors will complain. If the reference is to a portfolio-holder or the cabinet, they do not necessarily meet every 28 days. Some clarification of the Government’s amendments would be useful in helping us to decide how to treat the proposals.

John Healey: The hon. Lady is concerned about local authorities, but applications will not come out of the blue. There is a statutory minimum period. Some applications will be more complex than others and it is plausible that a promoter will decide that a longer period is needed for complex proposals or that the information is not required in the 28-day time scale. In such cases, the promoter could set a longer deadline.
The proposals refer to the pre-application process and are a new, additional requirement on promoters. They are an innovation in the application stage and represent a useful marker in the Bill, which tries to strike a balance between ensuring that the work in preparing and contributing to applications is done without delay and giving those who have an interest or a viewpoint the chance to register it with the promoter.

Jacqui Lait: I remain dissatisfied with the Minister’s reply and I need to think much longer and harder about it. However, I intend to withdraw the amendment so that we can devote more thought to the matter and return to it on Report.

Daniel Rogerson: I, too, was pleased that the Minister said he would consider parish and city councils as statutory consultees. He said he would consult on who should be on the list, and I hope that he will take into account my submission that parish and community councils should be included.
The second group of amendments is about who commissions the research and undertakes consultation at the pre-application stage. The Minister said he would ensure that the proposal is tightly drawn so that the commission can be confident that the report it receives accurately reflects the views of people in the community. On that basis, I will not press my amendment to a Division so that we can debate it at a later stage.

Elfyn Llwyd: I have one question for the Minister on my amendment No. 63. Will people who might be significantly affected by the development be covered by clause 39(5)(c)? In other words, would they be able to mount a claim for nuisance? If he cannot answer now, I would be obliged if he would write to me in due course.

Jacqui Lait: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sitting suspended.

On resuming—

Clive Betts: I beg to move amendment No. 83, in clause 37, page 18, line 19, after ‘London,’, insert—
‘(ca) the relevant passenger transport authority or authorities in cases where the proposed application would have impacts on the provision of transport in their area or areas,’.

John Butterfill: With this it will be convenient to discuss amendment No. 84, in clause 50, page 25, line 33, after ‘London,’, insert—
‘(ca) the relevant passenger transport authority or authorities in cases where the proposed application would have impacts on the provision of transport in their area or areas,’.

Clive Betts: I shall try to be brief, in anticipation that my hon. Friend the Minister will be even briefer and say that he accepts the amendment.
We have discussed the nature of the applications that will be dealt with by the IPC which could have transport implications—indeed, they could be about transport projects. It is therefore entirely logical that the authority within the public sector that is concerned with transport matters—the passenger transport authority—should be named as one of the organisations, even though it is not technically a local authority, that is consulted about applications and notified by the commission under clause 50 of an application being accepted.
There will be some anomalies if we do not include transport authorities. In south Yorkshire, for example, the PTA is responsible for passenger transport matters, but under the Bill it would not be notified about applications. Next door in Derbyshire, however, the county council would be notified, as it is responsible for passenger transport. Equally, it is slightly odd that in south Yorkshire, the bodies responsible for highways—the city and borough councils—would be notified, but the body responsible for passenger transport matters, the PTA, would not.
A PTA comprises members of the various district councils in the county area, but it is a separate statutory body with rights and powers that it exercises without reference to the district council. It therefore ought to be involved in the consultation and notification process. If we get to the position under the Local Transport Bill in which passenger transport authorities become integrated transport authorities and take on some of the wider roles of transport, including road transport in their areas, surely they would need to be consulted. Consultation about road matters that currently goes to the district council might in the future go to an integrated transport authority, which would be the successor body to the passenger transport authority. That would clearly need to be reflected in the Bill.
My amendments would clear up some of the current concerns about the neglect of passenger transport issues, and the fact that county councils, as the relevant bodies, will be consulted but transport authorities in the old metropolitan areas will not. For those reasons, they are at least worthy of the Minister’s consideration, if he cannot accept them immediately.

John Healey: I believe my hon. Friend will accept that the sort of applications that we are considering for the IPC will vary greatly in terms of the impact on a particular area, depending on the type of infrastructure that is proposed. In some cases, the local transport authority will have a great interest in the proposals, but it may well not in others. We are seeking to set out those parties that will have an interest in each and every national infrastructure project application, and which therefore must always be consulted as a matter of course.
I do not think that my hon. Friend has made the case that passenger transport authorities fall into that category. The proper place to deal with his concerns is in secondary legislation. I shall indeed reflect further on his comments in that context, but the Bill is not the proper place to deal with his concerns.

Clive Betts: I am prepared to accept my hon. Friend’s explanation and assurance that he will reflect on the amendments. I hope that there will be a proper place for passenger transport authorities as consultees to be incorporated in legislation, and I accept his assurance that that is secondary legislation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Watts.]

Adjourned accordingly at twenty-eight minutes past Seven o’clock till Thursday 24 January at Nine o’clock.